Justice Harvey Brownstone on family law issues


Globe and Mail Update

March 10, 2009 at 1:46 PM EDT


Last week, Justice Harvey Brownstone tackled questions from the readers of globeandmail.com on divorce law and family issues.


The hour-long exchange attracted many online readers and a large volume of questions, as well (he reports) as praise within the judiciary itself.


So, we at globeandmail.com are pleased that Justice Brownstone will return today from 1-2 p.m. ET to take your questions on the Ontario family justice system, his recent book, or the world of family law in general.


Justice Brownstone says he 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, he 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 his article Look at family court lauded, Justice 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.


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


Please Join the Conversation tomorrow (Tuesday) or submit a question here or through this story's comment feature.


When Justice 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.

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: Thanks for joining us again this week to answer questions from our readers. We had a lively discussion last time, and a pile of submissions to get to this time.

Justice Harvey Brownstone: I am delighted to have this further opportunity to respond to readers' questions about my book, Tug of War: A Judge's Verdict on Separation, Custody Battles and the Bitter Realities of Family Court, and to respond to questions and comments about Canada's family justice system. I also want to thank everyone for their immense support for the book, which has been consistently selling out at book stores throughout the country. It is gratifying to know that the public is interested in what judges have to say. I hope I'll have many more opportunities to respond to readers' questions and comments in the future.

Darren Yourk editor, globeandmail.com: Great. Let's get to it.

victor quinton from Canada writes: Why do attorneys seem to promote confrontation between parties? Why doesn't the Justice have more authority, i.e. having heard all the litigation and studied the facts, including the financials, insist on a settlement? Does it have anything to do with monthly billings and who will become a partner first?

Justice Brownstone: Victor, I am sorry that you perceive lawyers as "promoting confrontation". In family law, nothing could be further from the truth. Although there have been some exceptions (and they're few and far between), the overwhelming majority of family law lawyers are settlement-oriented and child-focused. Remember, lawyers take their instructions from their clients, NOT the other way around. Judges do have a lot of authority during case conferences, settlement conferences, motions and trials, and we try hard to get the parties to reach settlement. We tell the parties how we would decide the case if we were the trial judge, and we are usually very good at predicting the ultimate result. But we can't force people to reach an agreement if they want to keep fighting. However, there are lots of procedures available (including motions for summary judgment) to finalize a dispute without a trial. It's easy to blame lawyers, but let me tell you: going to court without a lawyer is a minefield!

Proud Canadian from Aurora Canada writes: My question has to do with spousal support when there are NO children involved. My husband is paying spousal support to his ex-wife under the terms of their separation agreement until: (a) she remarries (b) she dies (c) she lives common-law for 3 years. We know that she has surpassed the 3 years for common-law and we feels support payments should end. What conditions are acceptable in Ontario court to prove she is violating the agreement? Payments are made through FRO. Thanks for your time.

Justice Brownstone: If a separation agreement or court order provides that spousal support should terminate when a support recipient has cohabited in a common law relationship for 3 years, and the support payor believes that the "terminating event" (i.e. 3 year cohabitation) has occurred, a lawyer should definitely be consulted. If the parties cannot agree on the issue of whether the terminating event occurred, then the court will have to decide it, using well established legal principles to determine whether the recipient has in fact been "living common law" (as you put it). It's very important to get legal advice and give your lawyer all of the evidence you have that supports your position that the terminating event has occurred. Some people end up spending more money on the court case than if they just paid the support! So it really is extremely important to get legal advice from a family law lawyer before taking any action on your own.

Darlene Cort from Canada writes: Hello Harvey, Would you have any information in regards to a pension division within tax limits amount or in excess of tax limit amount? Thank you for your time. I hope you have great success with your book.

Justice Brownstone: Thanks Darlene for your very kind comments regarding my book. I certainly have received a great deal of positive feedback about it. The entire area of pension division is complex, especially when looking at tax implications. I have to defer to the experts on this one, as we judges in the Ontario Court of Justice do not deal with pensions (we deal strictly with custody, access, child and spousal support, restraining orders, child protection cases, and adoptions). If you have any questions about how pensions are dealt with in the calculation of net family property, it is vital to consult a family law lawyer. You should also know that Bill 133, which recently received second reading, addresses some long standing concerns expressed by the Family Law Bar regarding pensions, so take a look at that too.

Ziggy from Canada writes: What is your opinion on the lack of guidelines or rules for joint child custody support arrangements? Sole custody agreements have the finances dictated by the Federal Child support tables. It is my opinion, that the lack of guidelines steer couples into an adversarial situation (an attempt to gain sole custody). Child custody and support are the two most volatile areas of a divorce settlement, yet it is basically open for interpretation in the preferred scenario for a child's needs.

Justice Brownstone: Well, you are certainly correct that custody and support are often "lightning rod" issues. It's not correct to say that there are no guidelines or rules where parents have a shared custody arrangement. The Child Support Guidelines contain provisions that permit diversion from the table amount of child support, in cases where a parent has the child in his/her care at least 40% of the time. Unfortunately, there is no strict formula, because each family situation is different. The goal is to give the child the same quality of life in each parent's home. Depending on the disparity (if any) in the parents' incomes, and each parent's actual child care budget of expenses while the child is in his/her care, there may need to be some funds flowing from one parent to the other. Judges and lawyers are well aware that people would prefer easy, predictable formulas so that disputes can be minimized or even eliminated. However, when it comes to family law and the need to do what is right for children, it is not always possible (or fair) to impose strict formulas. However, the child support guidelines, together with the leading cases decided by appellate courts and the Supreme Court of Canada, do provide a great deal of guidance. Family law lawyers are very good at giving parents a predictable range of options that will be acceptable in shared parenting situations where child support is an issue.

Steve Jones from Hamilton Canada writes: Thank you for you time Judge. You mentioned in a previous reply to a question about getting the OCL involved. This is something that has been done in my situation. My question is this, how much credence or support does a judge place in the report from the OCL? Thanks.

Justice Brownstone: The Office of the Children's Lawyer (OCL) is a wonderful resource available to families in Ontario. To my knowledge there is no equivalent service in other provinces and territories. In a family law case where parents are in conflict over parenting issues, a judge may request the OCL to get involved, and if they agree to intervene (and it is up to them), they can do one of two things: 1. they can conduct an investigation and report (done by a social worker) the social worker meets with the parents, children, and many collateral sources (schools, doctors, extended family, counsellors, etc.). The report often will contain recommendations about how to resolve the parenting dispute. 2. They can appoint a lawyer to represent the child and advocate the child's independent position (obviously this would only happen if the child is of sufficient age and maturity to express independent views and preferences). In your case you've asked about the weight that a judge might place on an OCL report. Well, in most cases, the OCL report is the only independent piece of evidence judges have (all of the other evidence comes from the parents, and their non-arm's length witnesses [usually relatives]). So generally, courts give considerable respect to the findings and recommendations of OCL reports, but these reports are not necessarily determinative of the issue. Sometimes a report is out of date (that is, there's been a significant change in circumstances) before the judge has to make a decision. Sometimes the evidence before the judge is not consistent with the findings of the OCL investigator. So the best answer I can give you is: judges do carefully consider OCL reports, and they very often do result in a settlement of the case, but each case depends on its own circumstances, and the judge is never bound to accept or follow the OCL recommendations.

Michael French from Chatham, Ontario Canada writes: I am in the process of reading your book and it is an excellent read so far. My preference is that my ex-wife and myself are able to settle out of court, however there are some issues which don't seem to be conducive to an out of curt settlement. First, with respect to spousal support, she does not seem willing to work or to go back for re-training. She has every excuse in the book as to why she can't do this. Secondly, as a stay-at-home mom (by her choice), I have major concerns about the care my children, with a major concern being that their school attendance records are terrible. I do not expect her to settle for anything less than full spousal support without an inputted income (for her ability to work), or for child-care arrangements other than the children residing with her and me having modest visitation rights. Does this sound like a situation which you feel could still be settled without going to trial?

Justice Brownstone: Thank you Michael for taking the time to read my book. I hope it will be of assistance to you as a "blueprint" for mapping out a parenting plan for your children. Hopefully you'll ask your ex-wife to read it too! Regarding your personal situation, it is important right off the bat to SEPARATE your custody/access (parenting) issues from your financial issues. I know how hard it can be to try to deal with someone whom you feel may be unreasonable on financial issues (and I am by no means suggesting that either you or your ex-wife is being unreasonable), but for your children's sakes, keep the issues totally separate. The law regarding spousal support is complex and for some, confusing. You absolutely must get legal advice from a family law lawyer on this issue, because it is clear to me from your question that you may not have a complete understanding of the legal basis for spousal support. The issues of entitlement, quantum and duration of spousal support should NEVER be addressed (by either party) without a lawyer. On your question of whether you should try to settle your parenting dispute out of court, the answer any judge will give you is YES. Having a judge (a total stranger) decide parenting issues should always be a last resort. Many parents enter the dispute with fixed ideas about custody/access schedules, but mediation is often very helpful in helping them devise more creative parenting plans that will meet the needs of the children (in terms of their routines, activities, schooling, etc.) and also be workable for the parents. If you and your ex-wife retain family law lawyers, I have no doubt that they will help you make peace, not war. Compromise is very important when it comes to parenting plans. Besides, even if you do go to court, a case conference with a judge will sometimes get parents on the right track so don't think that every case ends up with a trial. Very, very few cases go to trial. Judges work hard at helping parents settle their disputes. We want parents to make peace, not war.

AH Razorwit from Belleville Canada writes: Can you comment on the fact that under current family law, a person is consider guilty (sexual abuse, child abuse, spousal abuse) until proven innocent and then, they carry the stigma with them for the rest of their lives. I recently tried to apply for a Justice of the Peace position, and my new wife and I wanted to take in foster children when our nest became empty but I found out that we did not qualify for foster parents because of my 'Record' with CAS and since my ex wife forced me into bankruptcy and their is a court order for child and spousal support on the books, I don't qualify for the job of Justice of the Peace... is this Justice at work? How can this be corrected. Your response would be greatly appreciated your Honour.

Justice Brownstone: I can see from your e-mail that you are in considerable pain and I am sorry about that. Let me assure you that the presumption of innocence is alive and well in Canada. Everyone charged with a criminal offence is considered innocent until and unless he/she is proven guilty. However, it is true that in family court, the mere raising of an allegation of misconduct can make the "accused" person feel very much on the defensive. It's hard (sometimes impossible) to prove that you didn't do something. The onus of proving that you did do something wrong is on the person alleging it. The standard of proof is "on a balance of probabilities", not the criminal standard of proof (beyond a reasonable doubt). This is all covered in my book, Tug of War. Judges are very aware of the stigma of abuse allegations, and findings of misconduct are made in family court only upon reliable and credible evidence. I cannot comment on the specific criteria for being appointed a Justice of the Peace, nor can I comment on the process for being approved as a foster parent. Sorry.

Edward Vickers from Edmonton Canada writes: Judge Brownstone: There appears to be an assumption that a certain age -16-18 brings on specific rights to have control over your life. The ongoing battle of 'parental brainwashing' cries out for specific rights for younger children to speak on their own behalf and if necessary take parents out of their lives. In many countries children of 14-15 are soldiers and even though this may be cruel, they demonstrate a certain independence and ability to survive. Why are we not judging a young person's critical thinking skills instead of using age as an automatic dictate to 'treatment, protection, education and the bestowing of limited rights controlled by the state. Why is age the sole measure of intervention?

Justice Brownstone: The law in Ontario permits a child who has reached the age of 16 years, to "withdraw from parental control" (even though the age of majority is 18 years). I know you are writing from Alberta, but I'm not sure what the age is there you'd have to check that out yourself. By "parental brainwashing" I am assuming you're talking about parental alienation syndrome. Generally, children should not have to be involved in their parents' disputes (read my book!!), but when it is necessary to determine what a child's views and preferences are, this is best done by a qualified child psychologist (or highly trained social worker) through an assessment. Judges struggle every day with the difficult question of how to get the child's voice before the court - although I repeat loudly and clearly, children should not have to be embroiled in parental conflicts, and should be given emotional permission by each parent to have a good and loving relationship with both parents! We are the adults they are the children. Never forget that.

Judy Walsh from Richmond Hill writes: Justice Brownstone; What is your opinion of the Family Workshop Program of Dr. Randy Rand especially in light of the recent developments in the Filaber case--the oldest child, 18 years old, has applied for standing and Custody of his younger brothers in the CAS proceedings; the CAS apprehended the boys after they returned from the Family Workshop Program and refused to reside with their mother despite the court order that mandated that.

Justice Brownstone: Hi Judy. I'm sure you can appreciate that it would be highly inappropriate for a judge to comment on an individual case. Besides, I only know what you know about it from what I read in the papers. Let me say, however, that the concept of parental alienation is very, very challenging and difficult for judges. The key is to know WHY a child is saying he/she does not want to have contact with the non-custodial parent. Has the custodial parent "brainwashed" or "poisoned" the child against the other parent, or does the child have his/her own independent reasons for not wanting contact? And even if parental alienation is found to have occurred, there are no easy answers for how to redress it. Changing custody (which has been done in extreme cases) can present problems, as you've mentioned. My whole purpose in writing my book, Tug of War, was to reach parents in potentially high conflict disputes BEFORE they embark on a potentially catastrophic course of conduct for themselves and their children. I hope the book can save children from the emotional harm of being caught in the middle of two warring parents.



The Globe and Mail very carefully "screened" "questions",

Notice nothing really controversial was published.

Justice Brownstone did not respond to the comment and questions below


Commentary by the Ottawa Mens Centre

Justice Brownstone, your comments are biased, politically correct, judicially correct propaganda that bears little resemblance to the realities of family law.

In particular, you allude that judges are impartial and objective, to start with yourself, you hold views that oppose "equal parenting" that is, that is based on an assumption that father's are an inferior parent, that children should be with the mother, that equal time is wrong.

You fail to address the issue that non custodial parents have access costs, accommodation and travel costs that exceed a primary parent's yet, the child support guidelines contain a spousal support element?

Then you are part of the machinery that rarely ever awards men spousal support from a woman, WHY is it that judges apply a gender lens so obviously, consistently contrary to the evidence and the law?

Why is it that several Ontario Judges are allowed to continue to sit on the bench when everyone they associate with knows that they are corrupt and or suffer an extreme personality disorder that causes them to issue "revenge orders", that is, draconian non appealable orders that are effective permanent jail sentences?

Why is it that Judges like Denis Power of Ottawa issue restraining orders to banish fathers from entire cities not for any harassment but to indirectly replace a just cancelled vexatious litigant order?

Why is it that Judges like Allan Sheffield issues orders for "summary judgement" when 4 other judges ordered trials.

Why is it that the judicial selection process fails to have any form of psychological screening to avoid the problem of having sitting judges with pathological personality disorders?

Why is it that supervisory Judges do not act to remove judges with obvious problems such as a flagrant abuse of discretion, corruption or anger problems that result in them exacting revenge in their decisions?