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Posts from the ‘Legal Aid’ Category

Ontario Superior Court Justice Pazaratz Speaks Out Against Legal Aid Squandering – Again

Ontario Superior Court Justice Pazaratz Speaks Out Against Legal Aid Squandering – Again

A recent Family law decision by Justice Pazaratz of the Ontario Superior Court of Justice caused a stir this past few weeks. In his written endorsement of a consent order, he bluntly stated that the case before him should not have been dragged out so long, and should not have been funded by public coffers so indiscriminately. He chastised both Legal Aid Ontario and the parties themselves for “squandering scarce judicial and community resources”, writing:

After confirming that Legal Aid was paying for all of this, I couldn’t help but ask some obvious questions:

a. Is it fair for people who have never paid any taxes to be so cavalier about how they spend other people’s money?

b. Is it fair that Legal Aid has decided to fund this easily resolvable case, when every day I see people with much more serious and complex problems who have been denied any help by Legal Aid?

c. Is it fair that more important cases, many involving the well-being of children, couldn’t be dealt with on March 9, 2017 because our court was required to devote one of our limited timeslots to this case?

The balance of the decision has much the same no-holds-barred tone. And while his comments might be unusually critical and frank for a judge, this isn’t the first time Justice Pazaratz has spoken out this way.

In several prior cases he provided similar disapproval of profligate spending on needless motions and other procedural wrangling — whether paid by from the public purse or otherwise.

For example, in Scipione v Scipione, he railed against Family law litigants who run up legal costs, and then ask the losing party to pay them. In explaining that costs rulings are to be directed by an “overall sense of reasonableness and fairness”, he added that “The Rules [of court] do not require the court to allow the successful party to demand a blank cheque for their costs.”

Next, displaying perhaps a little more creative flair, in Izyuk v Bilousov, Justice Pazaratz wrote:

The popular beverage has a catchy slogan: “Red Bull gives you wings.”

But at this costs hearing, the self-represented Respondent father suggested a wry variation:  “Legal Aid gives you wings.”

He now seeks costs in relation to a 1- day custody trial … He won; sole custody.  The Applicant mother was represented by counsel.  Her poor finances qualified her for Legal Aid.   Now she says those same poor finances should excuse her from paying costs.

The Respondent asks a valid question:   Does she have wings?   Can she do whatever she wants in court, without ever worrying about fees – hers or anyone else’s?

Justice Pazaratz ultimately made the following ruling:

In the case at bar, the Applicant conducted herself as if her Legal Aid certificate amounted to a blank cheque – unlimited resources which most unrepresented Respondents would be hard-pressed to match.  A scheduled 3-4 day trial turned into 17 days, largely because the Applicant fought every issue and pursued every dubious allegation, to the bitter end.  She appeared to make up evidence and allegations as she went along.  She defied court orders directly impacting on the child, even while the trial was underway. There have to be consequences.  Either we sanction this irresponsible and destructive behaviour, or we invite more of the same.

Encouraging settlement and discouraging inappropriate behaviour by litigants is important in all litigation – but particularly in family law, and most particularly in custody cases.  No litigant should perceive they have “wings” – the ability to say or do anything they want in court, without consequences.

Returning to the most recent of decision that is now under controversy: It’s a 2017 case called Abdulaali Salih in which Justice Pazaratz simply turns up the volume a little, on what has apparently become a recurring theme with him.

To give his latest comments context: The divorcing husband and wife, both of whom had immigrated from Iraq and had never worked in Canada, were both monthly recipients of government money from the Ontario Disability Support Program. Their litigation was being funded by Legal Aid Ontario, and since they had “no children. No jobs. No income. No property. Nothing to divide.”, he added that it should be “a simple case”.

Yet the couple had repeatedly returned to court to settle even minor issues, and seemed to have no impetus to slow down the steady stream of hearings between them. In expressing his exasperation at the needless dissipation of public money, Justice Pazaratz wrote:

At the March 9, 2017 attendance, apart from paying for the lawyers, taxpayers also had to pay for the following government employees to be present in Courtroom #5 to deal with this matter:

 a. A Court Services Officer.

 b. A Court Reporter.

 c. A Court Registrar.

 d. And me.

I have no idea how much the other players in the courtroom get paid. But as a Superior Court Judge I receive approximately $308,600.00 per year. So you can see that not even counting overhead charges and administrative staff in the building, every hour of court time is hugely expensive.

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.

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?

Clearly Justice Pazaratz has an axe to grind. Does he go too far? Or is he right?

For the full text of the decisions, see:

Scipione v Scipione, 2015 ONSC 5982 (CanLII)

Izyuk v Bilousov, 2011 ONSC 7476 (CanLII)

Abdulaali v Salih, 2017 ONSC 1609 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

 

Are “Unbundled” Legal Services in Family Law a Good Thing? Time Will Tell

Are “Unbundled” Legal Services in Family Law a Good Thing?  Time Will Tell

The move in Canada toward “unbundling” family law services is undoubtedly growing. However, clients need to be aware that there are distinct pitfalls involved in this kind of partitioning of family law services, and should take care to ensure that in all instances their legal interests are protected.

First things first:  What are “unbundled” legal services, exactly?

All legal processes in family law – whether traditional litigation or else negotiation, mediation, arbitration or collaborative family law — involve a string of procedures and processes which must be followed.   In some cases a client may be unable to have a lawyer’s full representation throughout the entirety of the matter (either due to the costs or other reasons).  Therefore, some lawyers are willing to provide paid legal assistance during only part of the process, for example by preparing a separation agreement, by attending on the client’s behalf at negotiation or mediation, by taking care of the initial preparation of court materials, or by attending on the client’s behalf during distinct stages such as a specific motion before the court, or at a case conference.  Collectively, these kinds of one-off tasks are known as “unbundled” legal services in family law, and are provided to the client pursuant to a limited retainer which sets out the scope and duration of the services to be undertaken by the lawyer.

Essentially, unbundled services represent a middle-ground between the client having no representation at all, versus having full representation by a lawyer.
While this model may seem appealing to or may work well for some clients, until recently there have been no legislated standards that expressly address the specific level of care or competence that a lawyer who provides such unbundled family law services must bring to the task.  (Currently, all Ontario lawyers are subject to the Rules of Professional Conduct which govern lawyer conduct and duty of care in a general sense.   These apply to all lawyers and all transactions.  However, there have been no specific provisions dealing with unbundled services per se.)

This changed late last year, when the Law Society of Upper Canada (which regulates all Ontario lawyers and paralegals) updated the Rules of Professional Conduct in an attempt to address this void.  Recent amendments now provide guidance for limited-scope retainers, and make it clear that lawyers are to provide the same standard of service and competence as if representing the client every step of the process.  This includes specifically advising the client of the nature and scope of the retainer, and providing confirmation of services in writing in most cases, with a copy to be kept on-file.  There are also new rules relating to how opposing lawyers are to communicate with lawyers working on limited retainers.

Although in terms of making room for the unbundled services model these amendments to the Rules are a step in the right direction, they are still only the first of many:  for example the Law Society must still approach the courts to hammer out any related procedural issues that could or will arise in the context of litigation.  Other potential problems inherent in this option may still come to light, and of course there is always the potential that disputes will arise between the client and his or her chosen lawyer, in connection with the particular scope, nature, duration and cost of the services that were agreed to be provided.

Still, the Ontario family law system sees more than its share of unrepresented litigants; the option to use a lawyer for unbundled services might help bridge the divide between those who can afford competent legal representation, and those who struggle to do so.  Still, the movement toward allowing this model is still relatively new, and it is subject to growing pains and adjustments.   Clients need to have all the information, and need to weigh the pros and cons.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at  www.RussellAlexander.com

 

 

Relaxed Qualifying Rules for Ontario Legal Aid Plan

Relaxed Qualifying Rules for Ontario Legal Aid Plan

If you are a low-income earner with legal problems, there is good news for you:   the Ontario Legal Aid Plan (OLAP) has recently announced that the rules for qualifying for Legal Aid will be gradually relaxed over the next three years.

OLAP was last overhauled in 1995, with the result that applicants had to meet certain strict earning thresholds before they would qualify for free legal assistance.   Specifically, single individuals could qualify only if they earned less than $10,800 per year, while families could qualify only if they earned less than $24,000 per year.

The move is welcomed by critics of what had been viewed as inappropriately-low financial eligibility thresholds, particularly since they are significantly lower than what Statistics Canada itself considers to be “low income” in many parts of the country (defined as the point at which a person is allocating a larger-than-average share of his or her income to necessities such as food, shelter, and clothing).  The figures vary by certain factors such as region, but in large cities like Toronto for example, a single person who earns less than $22,229 is considered “low income” for Statistics Canada purposes.  This is more than double the eligibility cut-off for Legal Aid.
Also, critics have frequently pointed to the fact that Canada’s qualifying threshold for Legal Aid compares very unfavourably to other parts of the world, where limits are higher and access to legal assistance is accordingly far more generous.   They also claim that unrealistic financial thresholds give rise to access-to justice-issues, since they result in more unrepresented litigants in courtrooms, longer delays in trials (due to litigants’ unfamiliarity with legal procedures), and correspondingly increased costs to government and society-at-large.

Therefore, the decision to readjust the qualifying rules on a phased-in basis is certainly a positive one.  It will assuredly broaden access to the Ontario legal system, by assisting a larger swath of financially-disadvantaged members of society.  However, the change may also impact those who are currently on the borderline:   for example, the raising of the qualifying financial threshold means that those earning at the existing cut-off (meaning $10,800 for singles and $24,000 for families) might still be eligible for Legal Aid under the new regime, but may be required to pay back some or all of the money.