“Et Peritiae Cave” – And Let the Experts Beware!

David Debenham
(President, ACFI)

In Laxton v. Coglon1, the court had occasion to comment on the performance of an expert forensic investigator in the context of allegations that an ex-husband was under-reporting his income to the family court for the purpose of under-paying spousal and child support. The Claimant ex-wife hired the expert to impute what she believed to be undisclosed income. The omens were all favorable to her. The motions judge, in keeping with the findings of his colleagues on prior motions, was not impressed with the ex-husband’s level of documentary disclosure. The previous motions court judges had found the ex-husband’s evidence unreliable. What could go wrong?

The claimant called a Certified Professional Accountant with an Investigative and Forensic Accounting specialty designation as her witness. He elected to treat any monies held in any of the companies controlled by the respondent or affiliated with those companies as income. The court considered this “little more than rampant speculation” and not a basis upon which the court could reliably determine the respondent’s income.  The court also found that expert gave an opinion based on facts were unproven and therefore unfounded.  The Judge found that:  “Whether it is the result of the instructions he received from counsel, or due to an approach he determined on his own, I find that he employed a biased approach that permeated the formulation of his report and the opinions expressed therein”. Despite the fact that the ex-husband was called a “liar” in earlier proceedings, the Judge in this case chose to believe him, and rejected the expert’s conclusions as unproven speculation. Despite his lack of candor before one judge, and what was found to be a deliberate attempt to mislead another, the judge said “I am prepared to accept the respondent’s evidence referred to in the preceding two paragraphs based upon the record and the viva voce and documentary evidence before me.” As a result the court was “not prepared to place any weight on what I find to be the biased opinions of [the expert] with respect to the respondent’s income.”

The lessons are simple (1) you cannot count on findings of credibility in previous proceedings, (2) the facts upon which you rely must have a solid basis in the evidence, and (3) the methodology you used must be supported by the professional literature.  If you forget any of these basics, be prepared to be eviscerated in court.

1 2017 BCSC 1544