CITATION: Abdulaali v. Salih, 2017 ONSC 1609

COURT FILE NO.: 4674/15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN: ) ) Noora Abdulaali Applicant – and – Kadhim Salih Respondent ) ) ) ) ) ) ) ) ) Mark Kaffko, for the Applicant Joel Kerr, for the Respondent ) ) ) HEARD: March 9th, 2017

THE HONOURABLE MR. JUSTICE A. PAZARATZ

1. 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.

2. The facts are simple. There are no complicated legal issues. Hardly worth a written endorsement, really.

3. But every now and then taxpayers ought to be told how their hard earned dollars are spent.

4. The Applicant wife is 32 years old. She came to Canada from Iraq five years ago. She has never worked in this Country. She receives monthly assistance from the government through the Ontario Disability Support Program.

5. The Respondent husband is 43. He came to Canada from Iraq seven years ago. He has never worked in this Country. He receives monthly assistance from the government through the Ontario Disability Support Program.

6. They met in Canada. They were married here on September 19, 2014. They separated five months later on February 6, 2015.

7. They have no children. No jobs. No income. No property. Nothing to divide.

8. It should be a simple case.

9. They appeared before me March 9, 2017 both wanting a Divorce. Again, simple enough.

10. But the matter was contested because the Applicant wife also wanted a restraining order against her husband. He opposed the request.

11. Her version:

a. There were two incidents of violence by the Respondent while they were together.

b. The Respondent was charged with assaulting her. The criminal charge went to trial and was dismissed in October 2015. She says he was acquitted because she got some dates wrong. But she insists he really did assault her.

c. Since the date the charge was dismissed, he has continued to harass her and bother her family and friends.

d. She is fearful of him and wants him to stay away.

12. His version:

a. He never assaulted her. There was never any domestic violence.

b. He was acquitted of the charge against him because the criminal court judge determined the Applicant had no credibility.

c. He denies harassing her.

d. He opposes a restraining order against him because he has done nothing wrong.

e. He feels she is delusional and he worries that she will simply fabricate more allegations.

13. It’s not uncommon that separated couples disagree about who did what.

14. And it’s not uncommon for the very serious issue of domestic violence to be dealt with in both criminal and family court.

a. In criminal court the focus is historical: determining accountability for past behaviour.

b. In family court the focus is forward looking: How do we prevent future misbehaviour.

15. The Applicant wife attended court represented by Duty Counsel, an on-site lawyer paid by Legal Aid Ontario. The Respondent husband attended court with his own lawyer – also paid for by Legal Aid Ontario. Both parties had filed extensive paperwork.

16. In fact this was the second time these parties went through our system – again with the help of Legal Aid.

a. In June 2015 the Applicant had started a similar Application.

b. But she apparently lost interest in the case. So after lots of legal work her original Application was dismissed on September 1, 2016, because she failed to follow through.

c. Less than three weeks later – on September 19, 2016 – the Applicant started all over again. She brought a fresh Application once again asking for a Divorce and a restraining order.

17. 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.

18. 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.

19. 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.

20. 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?

21. Which brings us to my particular frustration with this case.

a. The Applicant started by asking for a formal restraining order against the Respondent.

b. The Respondent said he’d fight it.

c. The Applicant then offered a compromise: 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.

d. Again, the Respondent said he’d fight it. He’d go to trial if necessary with his taxpayer-funded-lawyer.

e. The Respondent denied being a danger. And since he lives in London and she lives in Hamilton, he said there was little chance their paths would cross.

f. But he wouldn’t agree to any court order which imposed any type of restriction on him. Even if it imposed an identical restriction on her.

22. This is where common sense seems to have gone out the window.

23. Why should taxpayers be funding a very expensive court case – where each party promises to stay away from the other – simply because one of the parties refuses to put it in writing?

24. Would a person who actually had to pay for a lawyer out of their own pocket ever fund this kind of dispute?

25. We’re lucky that Legal Aid Ontario is there to help financially-strapped people who really need lawyers to help with genuine issues. Too often we hear that Legal Aid has refused to help because they don’t have enough money.

26. So how does a case like this wend its way through our clogged system, squandering scarce judicial and community resources, while no one watches the public purse?

27. 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?

28. I am mindful of the fact that the subject matter herein is an allegation of domestic violence. We take that very seriously. But the risks and dynamics have to be measured in a practical and realistic manner:

a. The Applicant wants the Respondent to stay away.

b. The Respondent says he’ll stay away.

c. We as a community certainly want them to stay away from one another. It costs us a lot of money when they interact.

d. How does either party suffer any prejudice if we make an order requiring both of them to do what they have already promised to do?

e. Is this really the kind of debate that taxpayers should spent thousands of dollars funding?

29. Although often forgotten, the Family Law Rules actually include specific provisions intended to guard against this sort of inefficiency:

2(2) Primary Objective

The primary objective of these rules is to enable the court to deal with cases justly.

2(3) Dealing with Cases Justly

Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

2(4) Duty to Promote Primary Objective

The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

2(5) Duty to Manage Cases

The court shall promote the primary objective by active management of cases, which includes,

(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;

(b) encouraging and facilitating use of alternatives to the court process;

(c) helping the parties to settle all or part of the case;

(d) setting timetables or otherwise controlling the progress of the case;

(e) considering whether the likely benefits of taking a step justify the cost;

(f) dealing with as many aspects of the case as possible on the same occasion; and

(g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference.

30. “Giving appropriate resources to the case while taking account of the need to give resources to other cases.” Isn’t that what the average taxpayer driving by our courthouse would think/hope that we’re doing?

31. Pursuant to my duty to manage cases, after outlining my concerns I suggested that everyone should go out into the corridor to talk. To see if maybe they could reach a sensible resolution. To add motivation, I explained that if they didn’t come to their senses I would formally request that the Area Director of Legal Aid Ontario attend before me to justify the obscene expenditure of tax money on a simple case with such an obvious solution.

32. A few minutes later they came back with Final Minutes of Settlement which I hereby incorporate into an order. On consent:

a. The parties shall have no contact directly or indirectly with each other or come within 500 meters of each other.

b. The divorce shall be severed from the corollary issues and shall proceed on an uncontested basis.

c. There shall be no order as to costs.

33. I made a fuss. I told them to stop wasting money. So they settled.

34. But why do we have a system in which so much tax money gets wasted, unless someone takes the time to make a fuss?

Pazaratz, J.

Released: March 13th, 2017