Divorce law and the family

Globe and Mail Update

March 3, 2009 at 2:04 PM EST

File phot of Justice Judge Harvey Brownstone, taken at his home in Toronto May 1, 2007. (Philip Cheung)


udge Harvey Brownstone was in a state of nervous anxiety when a book he had written exposing the perils of divorce litigation hit the bookshelves this month.

In his darkest moments, Judge Brownstone of the Ontario Court of Justice, was afraid of anything from a serious scolding from his superiors to a misconduct complaint. After all, in the tightly-cloistered world of the Canadian judiciary, sitting judges simply do not write books offering insider anecdotes, advice and a critique of the court system in which they work.

His book is: Tug of War (A Judge's Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court). Published by ECW Press.

As Globe court reporter Kirk Makin wrote in look at family court lauded, Judge Brownstone found that his book received praise and not chastisement. He received letters praising the book from Chief Justice Annemarie Bonkalo and from Ontario Superior Court Judge Heather Smith, among others.

Judge Brownstone will be online Tuesday, from 1-2 p.m. ET to answer your questions on this very divisive topic. Join the conversation then, or leave a question in advance through this story's comment feature.

Judge Brownstone was appointed to the provincial court bench in 1985, he came with a rich understanding of the family law area. After graduating from Queen's University in 1980, he worked as a legal aid lawyer and later joined the Ontario Legal Aid research facility, where he focused on family law. He later joined the Minister of the Attorney-General as director of the Family Support Plan, a branch which is responsible for administering child support and spousal custody orders.

The proceeds from the sale of his book are being donated to the Children's Wish Foundation and other children's charities.

Editor's Note: globeandmail.com editors will read and allow or reject each question/comment. Comments/questions may be edited for length or clarity.

We will not publish questions/comments that include personal attacks on participants in these discussions, that make false or unsubstantiated allegations, that purport to quote people or reports where the purported quote or fact cannot be easily verified, or questions/comments that include vulgar language or libellous statements. Preference will be given to readers who submit questions/comments using their full name and home town, rather than a pseudonym.

Darren Yourk, editor, globeandmail.com: Good afternoon Justice Brownstone. Thanks for joining us for this discussion. We've got plenty of questions from Globe readers, so let's get right to it.

David Frenkel from Toronto Canada writes: In light of the recent economic instability, what changes do you foresee in the area of Family Law litigation in the next one to three years?

Justice Brownstone: The biggest change we are seeing is motions by support payors to vary their child support payments. As people lose their jobs, it is only reasonable and fair to expect that their incomes will decline, and so the courts must respond appropriately by adjusting child support obligations. This is because child support is determined in accordance with the payor's income.

Mike Cicchini from Etobicoke Canada writes: Judge Brownstone. Your book is inspiring. I am a 39-year-old divorced male with a an 8 year old son. I have paid the correct amount of child support for six years based on T4 earnings. My access is as follows Tuesday 4-8 pm ( no sleepover) every other weekend Fri 4:30 - Sunday 5:00 pm I agree with child support payments and support the government in collecting from those who do not pay. I am a good dad, an active dad who wants to be a part of my sons life. A bigger part than for the last six years that I have been allowed to be. I would like to increase access time with my son. My son would like to increase access time with his dad. Do my son's wishes to spend more time with dad carry any significant weight in changing access/custody agreements? At what age does the court listen to the child?

Justice Brownstone: This question raises an excellent issue, and I would direct you to the part of the book dealing with the child's views and preferences. It is well known that children tell each parent what they think each parent wants to hear. That's because they want their parents to love them, and they don't want to hurt each parent. It is not at all unusual that each parent believes the child is telling him/her the truth, when in fact each parent is being told something different. Children should NOT be put in the position of having to make these choices. They are the children, their parents are the adults. Courts do not generally accept a parent's statement as to what the child wants, and courts do not generally hear from the child directly. However, the court can ask the Office of the Children's Lawyer to intervene, and if they agree to do so, they could either conduct an investigation and report (by a social worker), or they might even appoint a lawyer to represent the child. The only practical, sure way for the court to know what the child's views and preferences are, is for the judge to hear it from the Children's Lawyer's office. If they refuse to get involved (and it's their choice), then the court might order the parents to have an assessment done by a qualified social worker or child psychologist and this costs big bucks!

Stephanie Chipeur from Toronto Canada writes: As a third year law student who intends to pursue a career in family law I am very interested by the message of your book. Most of my experience with family law so far has been volunteer work with low income, self-represented litigants who need assistance drafting court forms. Other than not having quality legal advice some of the other obstacles faced by these litigants include difficulty effecting service on the other side, lack of flexibility in their jobs which can often limit their ability to attend court proceedings, and complete lack of non-legal professional support (e.g. child psychologists, financial experts). How do you see the future members of the family bar addressing the problem of the large number of participants in the family court system who go unrepresented? Is there something that can be done at Canadian law schools to encourage quality students to enter the practice of family law? Does the government need to invest more in legal aid and other court services in the family courts?

Justice Brownstone: Excellent questions. Part of the reason I wrote the book was to encourage law students to consider a career in family law. In my opinion, the legal profession does not do a great job of "marketing itself", so that the public can understand exactly what lawyers do and why it is so important to have a lawyer in family court. So I decided to do it myself with my book. I hope it works! Lawyers may have to revisit the question of how fees are charged, since working by the hour is very daunting and unpredictable for the client. I think more and more law schools are doing what they can to get students interested in family law but let's face it: you have to be a certain type of person to want to work with people in a high state of emotional anxiety, and family lawyers do not make much money (except for very few). I do a lot of speaking at law schools (whenever I'm invited!), and other judges do the same. Thank you for your interest in family law and best wishes to you in your legal career! See you in court!

Fraser Simpson from Vaughan Canada writes: Where do you see the current parliament will with respect to the legislation for shared parenting recommended in the task force document; 'For the sake of the children?'

Justice Brownstone: Australia tried changing the language used in family law, to eliminate the words "custody" and "access", because those words are such lightning rods for people, and evoke notions of power and control (over the child). It didn't work. Litigation numbers were not lowered at all, nor was conflict. If 2 parents want to fight, they're going to fight regardless of what you call it. Courts regularly see parents fighting over garden furniture and pillow cases that they could have bought at Wal-Mart for much, much less than what they've spent on legal fees. They say it's "the principle" of the thing. That's not going to change, no matter what you call it, I'm afraid. I can't comment on proposed government policy, but my point to parents is: find a way to reach compromise with each other and make peace for the sake of your children. If shared parenting is something that could be a workable solution, then parents should explore it. But it takes maturity!!! Parents have to be able to communicate with each other and co-operate with each other if they're going to share custody of a child and make decisions together if they don't even talk to each other (which is what we see all too often), it's hard to understand how a child's life would be peaceful and calm and consistent and stable if major decisions about him/her can't be reached by the parents. I am glad to see that governments do conduct task forces on this very important issue.

R R from Canada writes: Thank you your Honour for taking this question. Is there ever a circumstance(s) under which a husband would be well advised to go to court in order to have the legal system hear background details in order to ensure that the best interests of the children are truly realized, rather than simply accept the societal norm that the children are always better off with their mother. Thank you.

Justice Brownstone: It is NOT the societal norm that children are better off with their mothers. There is no presumption in law favouring mothers or fathers. None at all. Parenting skills have nothing to do with the gender of the parent.

Broken Beaten Divorced man from vancouver Canada writes: How can someone go back to appeal a judgment after the 30 day time frame. It was a limited frame, $25k in transcript fees and more legal fees, all under a judgment that was devastating and left me emotionally incapacitated. Can I ever resurrect this case to a higher level.

Justive Brownstone: Yes there's a procedure to apply for an extension of time to appeal. You MUST consult a lawyer NOW!!!

Jennifer Walter from Ottawa writes: A family member has been going through a difficult time with his wife for the past couple of months. She is not willing to talk and has asked for her space so they are trying an informal two-week separation, but it could be longer. He has reluctantly agreed to leave the house to give her the space she has requested and they are co-ordinating schedules around their children. Could this have any impact on any future claims he may have to the house and custody of the children. I'm concerned that because he was the first to leave that it may impact this. He is certainly not thinking in these terms and although I am hoping that they will work it out, I also want to make sure he is protected. What advice would you give in this type of situation? Or, is it too early to start considering these things? Thank you.

Justice Brownstone: Three words for your friend: GET A LAWYER. Actually, make it 4 words: GET A LAWYER NOW!!!

Bob Tweney from St. Catharines Canada writes: Does the judge look down on you when you represent yourself in a trial?

Justice Brownstone: Judges look down on NO ONE. We know that everyone coming before us in pain, and very upset and anxious. We do our best to make sure that justice is done, whether parents have lawyers or not. But we can only do so much. We can't go out and get evidence for you, and we can't give you legal advice. Remember: a person who represents him/herself has a fool for a client!!!!

Chris Arnold from Ottawa writes: Good afternoon Your Honour,
Australia has what they call 'Relationships Australia', stand-alone centres which do most of the heavy-lifting in helping individuals sort out their relationship transition issues, legal and otherwise. They are local, stocked with social workers and mediators, accessible, and are 'better, cheaper, faster' than family courts. I understand that family courts in Australia are just for the most contentious trial matters, and you can't get their directly but must instead make your way through the RA system first. Do you think this sort of ground-up re-tooling of how Ontario helps families in transition is possible here? Do you have any other projects in the work to get people out of court and into mediation or collaborative law solutions?

Judge Browstone: Australia has been very innovative and always makes great presentations at the annual conferences of the Association of Family and Conciliation Courts. I really like the concept you're talking about and judges, being ever mindful of the carnage that happens to parents and children resulting from litigation, are generally very supportive of these alternative dispute resolution mechanisms. Do I think it could happen here in Ontario? I hope so.

Fraser Simpson from Vaughan Canada writes: The main concept of 'For the sake of the children' was that parenting should be shared by default and that both parents should be equally involved. Changing language was only common sense. Why do judges continue to ignore this principle despite a $25-million task force that recommends shared parenting?

Justice Brownstone:Think about it: the kind of people we see are not candidates to share anything. The kind of parents who are mature enough to have joint custody or shared custody don't need to come to court and have a stranger tell them what's going to happen to their children. Courts only see the high conflict couples who can't even stand to be in the same room with each other. But I love the concept of shared/joint custody. That is certainly the goal we should all aspire to (even parents who live together), and I hope my book will inspire people to work towards it.

Media Torgal from Toronto Canada writes: Good afternoon. When you have two ex-spouses appear in front of your bench where one is really trying to be fair and reasonable and move on her life, and the other is obviously out for revenge, how much does this influence your decisions? Both parents love their children and want equal time with them, but one spouse is constantly insulting and undermining the other. When they are unable to communicate with each other directly, this obviously affects the parenting of the children. At what point does a judge decide to step in to stop the revengeful spouse?

Judge Brownstone: Trust me, it is fairly obvious when one parent is being reasonable and fair, and the other is being vengeful, self-absorbed and immature. Judges can read people really well. I don't know what you mean by a judge "stepping in" and I don't know what you want the judge to "stop" We are judges, not magicians. I can't change people's personalities. If I could, I'd start by changing my own!

Darren Yourk, editor, globeandmail.com: Justice Brownstone is due back in court, so we have to wrap the discussion. Thanks to everyone who participated.


Commentary by the Ottawa Mens Centre

[not published of course, the Globe strictly censored this article probably as a written or unwritten precondition of running the story.]

"Chamber's Propaganda" A Politically correct publication that bears little resemblance to the reality of family law where a few judges make most of the draconian decisions. Blackstone's crystal ball predictions contradict the trend to destroy children's relationships with their parents by the sharia like Male Gender Apartheid applied in Ontario Family Court that leaves a never ending product of destroyed fathers who are guaranteed to be repeatedly incarcerated without ever having a trial simply because family court judges flagrantly abuse their discretion. This is a fairy tale book that any father who has been to family court would not want to read before trying to sleep. Its a disturbingly inaccurate work of pure fiction. www.OttawaMensCentre.com