Navigating the treacherous waters of family law with Harvey Brownstone
Seven years after the end of a marriage that lasted all of eight years, a straight couple stands in a provincial courtroom on Sheppard Ave, arguing again about their two children. Neither has a lawyer, which is increasingly typical in Ontario’s family courts. The father, who has not seen his kids for two years, has filed an application to get better access. He suggests his ex-wife has poisoned the kids, 10 and 11, against him.
Over the course of an hour in front of Justice Harvey Brownstone of the Ontario Court of Justice, the man’s hard-done-by storyline slowly unravels. The father admits he pled guilty several years ago to assaulting one child; letters from a counsellor suggest both kids are deeply entrenched in their anger toward him, far beyond any motherly influence. When Brownstone and the parents silently read the letters, a feeling of sadness and frustration enfolds the courtroom. The father’s application is going nowhere. But Brownstone does not leave things there. Canada’s first openly gay judge isn’t the kind of person to take hope away from anybody.
“If they don’t want to see you now, that doesn’t mean it’s over. You’re going to have to wait ’til they’re older…. There’s no point in torturing yourself, torturing your wife, torturing your kids [with court cases]. Now you’re going to have to try with your heart — the right way — not with paper,” says Brownstone, holding up the thick file of bitter family history.
As if being an openly gay judge is not enough of a distinction, Brownstone, 54, is also remarkable in his outspokenness about the things that makes family law so exasperating for everyone involved. The familial language of love, hate, bitterness, abuse, redemption and revenge does not fit neatly into the system’s language of motions and stays. This only becomes clear to most people (if at all) when they are standing before the bench in their best clothes, wasting everybody’s time, when a calm heart-to-heart might have been more effective. But Canadian judges, off the bench and sometimes on it, are loathe to say anything more than they have to. For fear of prejudicing cases or perhaps damaging the dignity of the profession, they are astonishingly tight-lipped, throwing a veil of mystery, however inadvertently, over how the system works.
Brownstone not only published a book, Tug of War: A Judge’s Verdict on Separation, Custody Battles and the Bitter Realities of Family Court, last January, but went on an 80-city tour to promote it. His online TV show at familymatterstv.com, launched this summer, gets as many as 50,000 hits a day. In Canadian judicial culture, this level of public interaction is so unprecedented I assumed he must have sought special leave.
“No. You’re better to ask for forgiveness than permission,” says Brownstone, eating oatmeal in his chambers before a session. His colleagues might have raised their eyebrows but they’ve given him no grief. You have to tip your hat to a man who got a law book, now in its fourth printing, onto the Canadian bestseller list. Brownstone has big ideas about how public education can ease the pain of separation and child custody. You have to wonder, though, how long the judicial cloister can contain his ambitions.
Born in Paris, France, raised in Hamilton, Harvey Brownstone came out at age 19, while he was at Queen’s University. He had vague suspicions from an early age that he was different, so when he figured it out, he couldn’t help but share the news with his parents. They immediately rejected their only son. In some ways, their reaction made it easier for him to be gay out in the world. “When your family rejects you, you don’t care about what anybody else thinks,” he says. From the time he was called to the bar in 1983, Brownstone had his eye on the bench, but was repeatedly told that an openly gay man would never be made a judge.
In the mid-1980s, he worked under Attorney-General Ian Scott, who didn’t come out until the very end of his life, after his long-time lover had died. “Ian Scott told me, ‘Let them think what they want, but never confirm.’ He brought a woman to every public event,” says Brownstone.
After 10 years as a lawyer, the minimum waiting time, Brownstone applied to the bench; he was accepted two years later. He had been a clerk for Rosalie Abella, now a justice on the Supreme Court of Canada, who suggested family law was right for him because he was good at dealing with people in crisis.
In the meantime, Brownstone had met his great love, a veterinarian with whom he’s lived since 1985. When the Ontario Court of Appeal legalized same-sex marriage in 2003, Brownstone was called to perform some of the first weddings and has since officiated at more than 1,500 same-sex ceremonies. He delayed his own marriage until 2006, not wanting to get drawn into any controversies that may have come about if the decision was reversed. Thirty judges attended his wedding and watched his parents walk him down the aisle, an honour his parents long ago had given up on as impossible.
“Ultimately,” Brownstone says, “same-sex couples will not be any better at marriage than straight people.” But he acknowledges they’ve brought their own twists into the courtroom. In 2007, the Ontario Court of Appeal ruled that a child can have three parents listed on his or her birth certificate. That might include a lesbian couple and their sperm donor, or a gay couple and their egg donor.
“For example, two women decide to have a child and use my sperm,” says Brownstone. “We enter into an agreement that I have a role in the child’s life. And then I get a boyfriend they don’t like and they don’t want the child around me and my boyfriend. They try to cut me out. We see litigation now that is very specific to the gay and lesbian community.”
Brownstone is excellent at talking without giving an opinion, an ability that has allowed him to walk the fine line between judge and educator. He earns no money from Tug of War; author’s proceeds go toward children’s charities. Same goes for his online TV show; the disclaimer in the introductory episode goes on for about two minutes and the sedate production values do nothing to compromise the dignity of the judiciary. But he’s thought about how far he might take things if he left the bench.
“The major networks have expressed interest in our show. If the right opportunity came along, the right show, yes, this could evolve into another career,” he says, “but that hasn’t presented itself yet.”
As someone who has collected autographed celebrity photos since he was a kid — he’s got Judy Garland and Marilyn Monroe — Brownstone has a particular affinity for celebrity and media culture. He gushes with excitement talking about his book tour. He bristles at comparisons to Judge Judy — he’s thought a lot about how to bring the actual law, not a condensed soap opera, to the general public. It’s hard to imagine him refusing an opportunity to reach even more people if TV ever came calling.
Harvey Brownstone’s web series is at familymatterstv.com