In a recent decision that provides valuable guidance for Ontario family law practitioners, Justice J. Breithaupt Smith of the Ontario Superior Court of Justice addressed the admissibility of vocational assessment expert testimony in Sud v. Sud, 2025 ONSC 1268. The ruling offers much-needed clarity on the use of vocational experts in income imputation cases and reinforces the proper application of the White Burgess/Mohan test in family court proceedings.
Background and Context
The case involved a self-represented respondent, Mr. Sud, who challenged the admissibility of testimony from Ms. Talbot-Fletcher—a vocational expert retained by the applicant, Ms. Sud, to assess Mr. Sud’s earning capacity for support purposes. Mr. Sud questioned Ms. Talbot-Fletcher’s qualifications and impartiality, alleging she lacked personal knowledge of him and was biased toward the applicant’s claim of his underemployment.
Of particular significance is the Court’s confirmation that vocational assessments, commonly used in personal injury matters, are equally appropriate in family law. Justice Smith described such assessments as potentially “the gold standard of evidence for the imputation of income,” highlighting their fact-specific value in support disputes.
The Four-Part Test Applied
Justice Smith methodically applied the White Burgess/Mohan framework for expert evidence admissibility:
- Relevance: Vocational assessments were found directly relevant to the issue of imputing income for child and/or spousal support.
- Necessity: Their specialized nature placed them beyond the Court’s general knowledge, justifying expert input.
- No Exclusionary Rule: Aside from the hearsay exception inherent to expert evidence, no exclusionary rule was engaged.
- Properly Qualified Expert: The judge conducted a detailed review of Ms. Talbot-Fletcher’s qualifications and impartiality, admitting her testimony as expert evidence.
Key Takeaways for Practitioners
Expertise Thresholds in Vocational Assessment
- Nearly 20 years of experience in workforce transition counseling
- Certification by the College of Vocational Rehabilitation Professionals, with accelerated completion and status as one of only 59 such professionals in Canada
- Over 100 vocational assessments completed, primarily in personal injury litigation
- Ongoing professional development compliance
First-Time Expert Witnesses
Justice Smith clarified that an expert’s lack of prior courtroom testimony—here, Ms. Talbot-Fletcher’s first time—does not bar admissibility. The Court emphasized that expertise, not courtroom experience, determines qualification.
Impartiality Framework
- Signed Form 20.2 under the Family Law Rules
- Demonstrated independence from payment outcomes
- Retainer agreement with full-payment structure, regardless of opinion or outcome
Judicial Endorsement of Vocational Assessments
Justice Smith referenced a 2023 temporary order by Justice Madsen (on consent) requiring cooperation with vocational assessments. This affirmed their strategic value in family law support disputes.
Practical Applications
- Secure interim orders for vocational evaluations early in the process
- Ensure the expert is fully qualified and completes Form 20.2
- Align testimony strictly with the expert’s scope of expertise
- Distinguish admissibility from credibility—qualification opens the door, cross-examination tests the strength
- Use vocational evidence to support or challenge underemployment claims
Conclusion
Sud v. Sud confirms that vocational experts, when properly qualified and impartial, can play a crucial role in determining fair and accurate support outcomes. Adhering to the White Burgess/Mohan framework gives family lawyers a solid foundation for introducing this form of expert evidence in Ontario courts.
Let’s continue to elevate the practice of family law in Ontario!
Cheryl Goldhart is a mediator and arbitrator who can make a difference in resolving your family disputes.
- Near Four Decades of Family Law Experience: Chery’s career spansl nearly 40 years dedicated exclusively to the practice of family law.
- Masters Degree in Counselling: Armed with a Master’s Degree in Counselling, Cheryl combines empathetic understanding with profound insight.
- Certified Family Law Specialist by the Law Society of Ontario: Cheryl’s expertise in family law is certified by the Law Society of Ontario, recognizing her as a specialist in the field.
- Accreditation in Mediation from OAFM: Cheryl’s family law mediation expertise is recognized and accreditated by the Ontario Association for Family Mediation.
- Professional Arbitration Designation by ADR Institute: The ADR Institute of Ontario has granted Cheryl a professional designation in arbitration, affirming her expertise in this area.
- Award-Winning Contributions to Family Law: Cheryl has been honored with numerous awards and accolades for her significant contributions to family law, including the prestigious Ontario Bar Association’s Award for Excellence in Family Law.
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