The Canadian Bar Association
Family

Litigants funded by legal aid have little incentive to settle

A family court judge known for his strongly worded decisions is critiquing litigants who find little incentive to settle because they are funded by legal aid, says Ottawa family lawyer Timothy N. Sullivan.

While Sullivan, principal of SullivanLaw, says Justice Alex Pazaratz is right in pointing out such flaws, there are always factors behind the scenes that may force parties to litigate.

“The judge is correct to say there is no financial incentive to settle when you’re legally aided, but there’s also no other recourse for someone who may be abused than to go to court and, if it’s not criminal, ask for a civil restraining order,” Sullivan tells AdvocateDaily.com.

“Many of these cases are clogging up the system, we have people accused of murder having charges stayed because they can’t get to a judge on time, but we have people legally aided, who feel desperate and have no other recourse than to go to court.”

In the recent ruling from Pazaratz – who also wrote a decision known as “Breaking Bad Parents” – he bemoans taxpayer-funded cases that should be settled out of court instead of racking up costs and court time.

“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,” he wrote.

“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?”

The case involves a relatively simple matter concerning two parties without children, jobs, income or property. The couple separated after five months of marriage, according to the decision. The ex-wife alleged abuse which the ex-husband denies. A criminal charge was dismissed.

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

“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?”

Sullivan says he shares the frustration. When he represents clients who are paying for legal representation and the other side is funded by legal aid, the incentive to settle is always on the paying party.

“There should be some way to level the playing field for someone who can afford to pay for a lawyer and someone who is absolutely not able to pay for a lawyer, which puts the person who is financing the lawyer at a significant disadvantage,” he says.

In the end, Pazaratz sent everyone into the corridor to come up with a solution on their own. If they couldn't, he threatened to call the Area Director of Legal Aid Ontario to explain why it was funding the “obscene expenditure” of the simple case. The pair ultimately agreed not to come within 500 metres of each other. 

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

While Sullivan says it’s relatively common for judges to send parties away to come up with their own solution – usually after a “tongue lashing” – he says lawyers still bear responsibility in encouraging parties to settle without dragging needless cases through court.

“He is not critical enough of counsel for bringing a case that should be easily resolved,” Sullivan says. “I think some lawyers should be more in control of telling clients ‘no,’ but I also understand that lawyers are advocates only, and sometimes they have to put lipstick on a pig.”

Sullivan says he tells clients when their cases don’t have a chance at success, encouraging them to be reasonable, “but that only works when both lawyers are doing it.”

Just “rolling over” is not fair to the client, he adds, particularly if there are allegations of abuse.

“The unseen component is a lawyer could be counselling a client to press ahead with litigation, because if they cave, it could be perceived as not standing up to the alleged abuser.” 

Sullivan says there are many ways the clogged family law courts could be made more efficient: by enforcing procedure, avoiding duplication in documents, and expediting processes where possible.

He says Legal Aid Ontario has optional mediation, but perhaps there should be more incentive to use it.

“They should be able to say, 'Unless you mediate, we’re not going to finance this case,'” Sullivan says. “That might show a degree of intransigence that is unwarranted. Then again, mediation is voluntary and there’s no reason to if someone is going to be so intransigent as to not do anything unless a judge orders it.” 

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