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Going where no judge has gone before

Going where no judge has gone before

It's rare for judges in the Canadian legal system to speak out on the laws they interpret and administer, but family court Justice Harvey Brownstone has broken that unwritten rule.

Alumni Spotlight 1980s

Justice Harvey Brownstone, Law’80, couldn’t have made his point more effectively. As I stand waiting for the elevator doors to close in the North York, Ontario, court building where his office is located, two children enter with their mother, tears streaming down their faces. It’s sympathy for children – the innocent victims of divorce – that prompted Brownstone to write Tug of War – A Judge’s Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court.

Judge Harvey
Brownstone is the
author of Tug of War,
a book that takes a
look at Canada’s family
law system.

What’s especially remarkable about the book is that Brownstone has gone where judges never go; he has spoken out publicly on an issue about which he feels strongly – the family law system – and does so in straight-forward, non-nonsense language.

“The judicial culture doesn’t encourage judges to speak to the media or give speeches to the public. If we write, it’s material for law schools or lawyers. This book is forging new territory,” he says.

“A judge needed to write a book telling people how bad litigation and the adversarial system are for children, and for parents, too. By the time judges get a chance to tell people what they need to know if they’re going to use the justice system, it’s too late. My goal is to give people that information well in advance.”

Brownstone is well qualified to do that. He has a varied legal background. After graduating from Queen’s law school, he practiced criminal law, but found it distasteful. “The trouble with criminal law is that if you’re good at it, you get [guilty] people off,” he explains.

So he switched to family law and clerked for Justice Rosalie Abella (now a Supreme Court of Canada judge), who inspired him. Then he went to work for the Ontario Ministry of the Attorney General in the support and custody enforcement program, now known as the Family Responsibility Office. He worked his way up to the position of director and was appointed a judge 14 years ago.

Brownstone says he sees the worst in human behaviour in family dynamics and relationships; it’s been estimated that 45 percent of marriages today end in divorce. Many people are in court fighting over issues that have nothing to do with the legal system. “We’re a court; we settle legal problems. The problems people come with aren’t really legal. I never took a course in law school that told me what camp their kids should go to.”

Too bad, because more often than not that’s the kind of thing family court judges end up settling these days. Brownstone recalls, “I recently heard a case that went on for two days. The parents were fighting over which summer camp to send their children to and whether it would be in July or August. They spent enough money in legal fees to put both of those children through university for a year.”

Brownstone is aware of the enormous costs involved when people hire a lawyer, and he sees a number of people who act for themselves because they can’t cannot afford one. He urges people to hire a lawyer for at least an hour or two of legal advice; while property and support matters need to be settled in court, it’s not the place to settle custody and access disagreements. “The type of fighting I see has nothing to do with the children. It’s all about power and control. People think we’re in the vengeance business here,” he says.

Instead, his book encourages divorcing couples to see a mediator, a family counsellor, or a parenting coach to work out how to best take care of the children, rather than fighting it out in court. That message is one that has won Brownstone kudos. Chief Justice Heather Smith of the Superior Court of Justice of Ontario and Chief Justice Annemarie Bonkalo of the Court of Justice of Ontario have written letters praising the book, and a March 16 Globe and Mail editorial saluted Brownstone for his commitment to public service.

His supporters might also have applauded the fact that all proceeds from the sale of Tug of War are going to the Children’s Wish Foundation. Brownstone says his judicial colleagues have been overwhelmingly supportive of the book, and he hopes this may spur others to follow his lead. Response has also been very positive from lawyers. “They tell me they’re ordering the book by the boxful and handing it out to their family law clients.”

Brownstone says one couple he knows of have already withdrawn their legal case and have gone to counselling after reading his book. “That brought tears to my eyes,” he says.

If he can stop more bickering parents from coming to court and bringing tears to their children’s eyes, then he’s done the job that he hoped to do.

[Queen's Alumni Review 2009-2 cover]