Access to Justice
Judge Speaks Out Against Abuse of Legal Aid in Family Law Disputes
As we’ve noted in several of our previous blog posts, Justice Pazaratz of the Ontario Superior Court of Justice in Hamilton is well-known amongst family law practitioners for his clear, blunt decisions that can be both critical about the parties that appear before him and send a strong message about how the family law system can be improved. In his recent decision in Abdulaali v. Salih, Justice Pazaratz took on the issue of what he viewed as abuse of the Legal Aid system by two former partners seeking a divorce.
In Justice Pazaratz’s always short and precise words, the couple in question: “…have no children. No jobs. No income. No property. Nothing to divide. It should be a simple case.” The matter was complicated somewhat as, in addition to the divorce, the wife sought a restraining order, which the husband opposed. Both parties were represented by Duty Counsel, provided by Legal Aid Ontario. The wife is 32 years old, arrived in Canada in 2012, has never worked in the country, and receives monthly assistance through ODSP. The husband is 43 years old, has been in Canada since 2010, has never worked in the country, and also receives monthly assistance through ODSP. They met after they both arrived in Canada, married in 2014, and separated five months later. Both parties had filed extensive paperwork in support of their respective positions. This was the second time both had gone through the legal system- the wife had previously filed for divorce and requested a restraining order, an application she subsequently abandoned before applying again in this instance.
“Common Sense has Gone Out the Window”
Justice Pazaratz acknowledged the seriousness of domestic violence in a family law dispute, but noted the significant number of resources that were used in adjudicating this dispute, stating “the next time anyone at Legal Aid Ontario tells you they’re short of money, don’t believe it. It can’t possibly be true. Not if they’re funding cases like this.” Justice Pazaratz went on to outline his frustration with the specific facts at hand pointing out that “common sense ha[s] gone out the window”. The judge was particularly frustrated with the husband’s apparent refusal to agree to any order in writing that would keep the parties away from one another. The wife had even indicated that “it didn’t have to be a formal restraining order. All she wanted was some sort of court order- equally binding on both of them- that they should stay away from one another. Just some protection, to be less afraid.” However, the husband continued to refuse to be cooperative. Justice Pazaratz then pondered whether “…a person who actually had to pay for a lawyer out of their own pocket ever fund this kind of dispute?” He noted “….when you pay no taxes and Legal Aid gives you a free lawyer, there’s no incentive to be sensible. Why worry about the cost when some unsuspecting taxpayer out there is footing the bill?” Ultimately, Justice Pazaratz suggested that the parties and their legal counsel have a discussion without him in order to reach a “sensible solution”, explaining that if they could not, he would contact the Area Director of Legal Aid Ontario to justify the “obscene expenditure of tax money” on what was a “simple case with such an obvious solution.” The parties ultimately came to a written agreement, barring each of them from direct or indirect contact with one another, and prohibiting them from coming within 500m of one another.
This matter is a helpful reminder that courts do not look kindly on cases that they view as a “wasteful” use of “scarce judicial resources”, particularly in family law matters. Parties who engage in behavior that prolongs the litigation process and drives up expenses for both sides of the dispute are generally not viewed favourably by courts- regardless of whether Legal Aid is utilized, or if the parties are covering expenses out of pocket. In some cases, extreme or unreasonable behavior by a party can lead to criminal charges. In other cases, prolonged and unnecessary litigation leads to exorbitant legal fees, and may also result in additional costs consequences. In this instance, both parties were new Canadians who may have been unfamiliar with the legal system. The very serious issue of domestic violence (one which Legal Aid tends to prioritize) was also a factor. At the end of the day, however, parties involved in family law disputes should remember that disputes that can be settled with the help of a family lawyer out of court, without using court resources, should be settled as such wherever feasible. If you have questions about separation, divorce, or any other family law issue, please contact Windsor family lawyer Jason P. Howie, online or at 519.973.1500. Read our blogs about Justice Pazaratz’s other decisions: