The Jointly-Retained Report At The Interim Stage: Weight Without Form 53

Interim support and financial motions frequently turn on an expert valuation — an income or business valuation report — tendered before the formal expert machinery is complete. The recurring evidentiary question is whether the court can rely on such a report where there is no affidavit from the expert swearing to its contents and no signed Form 53 acknowledgement of expert’s duty. This note sets out the answer on the authorities and the practice points that follow.

The Default: The Report Is Hearsay

Absent the formalities, an expert’s report tendered for the truth of its contents is hearsay. There is ordinarily no evidence under oath from the author, and no acknowledgement of the expert’s overriding duty to the court. On a strict view, that is a barrier to reliance.

The Joint-Retainer Exception At The Interim Stage

A joint retainer changes the analysis. Where the parties jointly retained the expert, where they were satisfied with the expert’s qualifications, and where the responding party was given the opportunity to provide feedback on the report, a court may accept the report for the purposes of an interim motion despite the absence of an affidavit or a Form 53. The reasoning is that the joint selection and the opportunity to respond supply the reliability the formalities would otherwise secure — enough for the limited purpose of an interim, without-prejudice determination, though not necessarily for trial.

This is a narrow, stage-specific accommodation. It rests on the interim posture and the joint character of the retainer. It should not be read as dispensing with Form 53 generally, and it does not resolve the report’s ultimate weight at trial, where the expert’s evidence can be tested.

The Corollary Counsel Must Not Miss

The more important practice point runs the other way. A party challenging the report’s methodology must take the court to the specific calculations said to be wrong. It is not enough to assert in an affidavit that the expert failed to account for expenses, and then, when pressed at the hearing, direct the court only to the affidavit and the report’s summary page. That does not engage the methodology. On an interim motion the court will not reconstruct the challenge the challenger has failed to particularize, and the unrebutted report stands.

Two Practice Points

If you rely on a joint report without a Form 53: build the record for the exception expressly — the joint retainer, the parties’ satisfaction with qualifications, and the responding party’s opportunity to respond. Do not assume the court will infer it.

If you attack a joint report: put the specific line items and calculations in issue in your written materials and be ready to walk the court through each on the day. A general objection to methodology, unsupported by identified errors, is an objection the court can decline to engage. This article is general information about Ontario family law procedure and is not legal advice. It does not describe any specific client’s matter. For advice on your own situation, speak with a lawyer or set up a consult with us today.