In his ruling in Abdulaali v. Salih, Justice Alex Pazaratz says the matter between a couple seeking a divorce became needlessly complicated.
In the case, a 32-year-old woman, Noora Abdulaali, alleged she had been assaulted by her former husband, and harassed after leaving him.
The 43-year-old man, Kadhim Salih, said he feared his former wife would fabricate allegations against him.
The couple had no shared property and no children, noted Pazaratz.
“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,” Pazaratz said the ruling.
Abdulaali was represented by duty counsel paid by Legal Aid Ontario, while Salih was represented with his own lawyer, paid for by Legal Aid Ontario.
Pazaratz was critical of the case for multiple reasons, and said it was “hardly worth a written endorsement.” However, as Pazaratz explained in the ruling, it blossomed into an ongoing battle after Abdulaali pursued a restraining order against Salih.
The two, who now live in separate cities, were unable to agree on a court order that they would stay away from each other — even if binding on both of them.
“Many taxpayers can’t afford their own lawyers, and don’t qualify for free assistance through Legal Aid. So they end up representing themselves in court. Or facing financial reality and settling without going to court,” he says, in the ruling.
“But 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, Pazaratz suggested the parties and counsel involved have a discussion to see if they could reach a “sensible resolution” — and if not, that he “would formally request that the Area Director of Legal Aid Ontario attend. . .to justify the obscene expenditure of tax money on a simple case with such an obvious solution.”
“I made a fuss. I told them to stop wasting money. So they settled,” said Pazaratz.
“But why do we have a system in which so much tax money gets wasted, unless someone takes the time to make a fuss?”
For its part, Legal Aid Ontario said in an email statement it could not go into the details of the case.
“Legal Aid Ontario offers support to all kinds of vulnerable people,” said spokesman Graeme Burk.
“The privacy rules governing our actions means we cannot comment on the specifics of this case. However, our role has been, and continues to be, helping our clients access justice and navigate the legal system.”
Sharon Shore, partner at Epstein Cole LLP and chair of the Ontario Bar Association’s Family Law Section, says “what we’re hearing is [Pazaratz’s] frustration with the current system and a problem that we know exists as far as access to justice.”
“He’s placing the blame on Legal Aid Ontario, but I don’t know that it’s really limited to that issue,” she says. “. . .There is an ongoing problem that a lot of judges and certainly the bar have been working on, as far as what do you do with the self-represented individuals, what do you do with the court system that is lacking in resources.”
Shore says Pazaratz “didn’t need to write” the decision, as it was a consent order.
“He was clearly frustrated and sending a message. It makes you stand up, it makes you listen to it, but I’m not sure that it’s fair to place it entirely on Legal Aid,” she says.
“I think it’s a frustration with the system.”
Jonathan Richardson, with Augustine Bater Binks LLP in Ottawa, said the ruling is “one of the bluntest decisions I have ever read.”
“It shows the difficulties present in the legal aid system and the balancing act legal aid lawyers have to maintain,” he says. However, he adds, “it is fair to point out that the presence of legal aid has not made this particular dispute any worse.”
“Given the circumstances described, it is likely the same steps would have been taken and the same court costs incurred if both parties were self-represented. . .what the case does speak to is the need for early intervention and triage in family law cases so that cases such as these can be worked out of the system at an early stage and without the need to use up court resources which could be better focused elsewhere,” he says.