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Common sense seems to have gone out the window”

 Lately there seems to be a trend in which judges have been rendering decisions where they are censoring litigants, counsel and government bodies such as Legal Aid of Ontario.

In a recent decision the court found fault with the parties and Legal Aid of Ontario.

In Abdulaali and Salihi, 2017 ONSC 1609, both parties were being assisted by Legal Aid. The wife by Duty Counsel on her day at Court and the husband had a lawyer funded by a Legal Aid Ontario Certificate.

The parties were both seeking to divorce one another after a five month marriage. The only issue in dispute before the Honourable Mr. Justice A. Pazaratz was a restraining order. This should have been a simple case; there were no children, no property, no incomes, nothing to divide.

The wife indicated she had been assaulted by the husband and she feared him. There had been a criminal trial for the alleged assault two years earlier, which was dismissed. The wife indicated it was because she mixed up some dates. The wife stated that the husband continued to harass her.

The husband denied that there was ever any domestic violence nor had he ever harassed his wife. He would not agree to a restraining Order.

Justice Pazaratz stated, “But when you pay no taxes and Legal Aid gives you a free lawyer, there’s no incentive to be sensible”. Justice Pazaratz pondered if it was fair that Legal Aid Ontario fund such an easily solvable case, when there are much more serious and complex cases to be resolved? Additionally there are far more important cases, those cases involving the well-being of children, yet this case was wasting the much needed and overburdened Court resources.

It is the tax payers that are ultimately paying the bill for the Legal Aid system which issues Legal Aid Certificates and provides Duty Counsel lawyers, as well as for the Court system and infrastructure, which include the Judge’s salary, specifics of which he provided in his written reasons.

Justice Pazaratz used his duty to manage the case before him and he directed the parties and counsel take time to talk. They returned with signed final Minutes of Settlement resolving the matter. The husband and wife agreed that they would have no contact directly or indirectly with each other or come within 500 metres of the other.

Justice Pazaratz stated, “I made a fuss. I told them to stop wasting money.  So they settled. But why do we have a system in which so much tax money gets wasted, unless someone takes the time to make a fuss?”

So what is the lesson learned from this case? It is important that you retain counsel who are able to advise you properly regarding the potential outcome at trial and whether or not it is prudent to take a matter to trial in the first place.

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