Tug of War: A judge testifies on family law

By Michael Rappaport

A comedian once joked that half of all marriages end in divorce, which isn’t so terrible when you consider that the other half end in death. Going through a divorce can be as emotionally wrenching as grieving the death of a loved one, particularly when young children are trapped in the conflict zone between battling parents.

Justice Harvey Brownstone’s book, Tug of War: A Judge’s Verdict On Separation, Custody Battles and the Bitter Realities of Family Court is an urgent plea to parents who are getting separated or divorced to do their best not drag their custodial dispute into court.

Why does Justice Brownstone – who has presided over the North Toronto Family Law Court for nearly 14 years – counsel divorcing parents to avoid litigation? The answer: Going to court is rarely in the best interests of the children.

Testifying from the bench, Justice Brownstone writes that judges burdened with heavy caseloads and crowded dockets are forced to make numerous child custody, access, matrimonial property and support decisions each day, often on the basis of incomplete and subjective court submissions. They have virtually no time to get to know the parents involved or opportunity to meet the child affected. “What person in their right mind would advocate for this method of resolving parental conflicts flowing from family breakdowns?” he asks rhetorically.

Litigation is a damaging and destructive way to resolve parental disputes, according to Justice Brownstone, since the court system is based upon an adversarial process that pits parents against each other when they should be on the same team for their children’s sake.

“When you start a court case, you are starting a war,” he warns.

Instead of going to court, Justice Brownstone advocates for various forms of alternative dispute resolution, such as mediation, collaborative law, arbitration and mediation-arbitration. At present, about 10 percent of separating couples wind up in family law court. Justice Brownstone insists this venue should only be resorted to in a narrow range of cases, for instance where a partner is refusing to provide financial disclosure or where there is domestic violence, child abuse or neglect.

The book’s target audience is primarily parents who are going through a separation – not lawyers. Specifically, Justice Brownstone takes aim at “self-represented litigants” who he distinguishes from “unrepresented litigants.”

An unrepresented litigant is a person who wants to have a lawyer but cannot afford one, whereas a self-represented litigant is a person who can afford a lawyer but believes that he or she does not need one. Justice Brownstone has observed too many of the latter in his courtroom, who think “regularly watching Judge Judy” is adequate preparation to argue a case in court. He tries valiantly to disabuse self-represented litigants from their folly. An oft-repeated refrain throughout the book is “consult a family law lawyer.”

Why would lawyers, particularly family law lawyers, want to plunk down $19.95 to read this book? For starters, Justice Brownstone is donating all his proceeds from the sale of the book to children’s charities. Moreover, it provides a rare glimpse of what a sitting judge thinks about the good, the bad and the ugly realities of the family law court system, family law lawyers and family law litigants. Furthermore, reading the book will help family law lawyers provide better guidance to clients, especially the final chapter that is full of heartfelt and wise advice for resolving parental disputes post-divorce.

All these are sound rationales. But the main reason for lawyers to read this book are the family law horror stories from actual court cases that Justice Brownstone recounts as examples to illustrate various points. A handful of samples, that run the gamut from the petty, to the malicious, to the downright bizarre, include: A case in which a woman ordered pizzas and Chinese food to be delivered to her husband’s home in the middle of the night, every night for the first two weeks after the breakup; a motion in which a self-represented litigant urged the judge to hurry up and make a decision, since he was double-parked and had to get back to work in an hour; custody disputes in which young children who could not yet read and write were able to recount every detail of the parents’ financial dispute or used words such as “abusive,” “egomaniacal,” and “harassment” but could not explain what these words meant; and a child support dispute where a parent who had undergone sex reassignment surgery argued that she was now a mother, not a father, and therefore her child support obligation should end.

If arguing that it is not in the best interests of their children is not sufficient to dissuade your clients from resorting to litigation, perhaps they may be deterred from going to court by emphasizing the risk of having their private squabbles made public.

Tug of War:
A Judge’s Verdict On Separation, Custody Battles and the Bitter Realities of Family Court

By Justice Harvey Brownstone
ECW Press $19.95