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That's History: Brownstone -- the Blackstone of Family Court?

I''ve been reading that Family Court Justice Harvey Brownstone has done something historic with his recent book Tug of War. Judges, you see, don''t often address the public by writing books about the work they do.

As Kirk Makin wrote in The Globe & Mail, "Sitting judges simply do not write books offering insider anecdotes, advice, and a critique of the court system in which they work."

But ever since the first Canadian family court opened in Toronto in 1929, Family Court has never been quite like other courts.

Amid the rapid social changes of the 1920s, social reformers discerned a crisis in the family: family breakdown, juvenile delinquency, immorality. They concluded it all required a new approach by the courts. The idea was what historian Dorothy Chunn calls "an amalgam of law and social work," a bottom-up initiative to address social problems as much as legal ones.

In the reformers' dream, the new courts would have mostly non-legal personnel. They would offer treatment and prevention rather than punishment.

They would emphasize informal settlements more than judicial decrees.  Initially, family courts were established under provincial court legislation, with the limited jurisdiction of magistrates' courts, where many people represented themselves.

 Among the advocates for family courts were leading women's activists of the time: Charlotte Whitton in Ontario, and Magistrate Helen Gregory MacGill in Vancouver.

And in keeping with the "non-lawyer courts" concept, many of the early judges of these courts were non-lawyer magistrates. B.C. attorney general and judge Alec Manson, a supporter of the concept, declared he would "never allow a lawyer" to be a family court judge.

Well, Family Court has come a long way since then. "Do I need a lawyer? The answer is a definite YES," Brownstone writes. He started specializing in family law in law school, clerked at the Family Court in Toronto, practised family law for 18 years, and has presided in Family Court throughout his judicial career. That whole non-lawyer court idea is long dead.

And by the 1970s, the problem of responsibilities divided between federal and provincial courts had become too great to ignore. An experiment in applying both federal and provincial jurisdiction in family courts began in Ontario in 1977, and the expanded jurisdiction was made permanent in 1984.

Still, something of the "courts that are not like courts" aspiration survives. "Family Court is not good for families, and litigation is not good for children," Brownstone declares. Non-lawyer specialists remain vital in the process. Brownstone recommends mediation, arbitration, and collaborative law, and reports with approval that 60 per cent of divorcing couples in Canada now rely on these.

Brownstone's principal message to his readers: how toxic Family Court is for families. In a line that seems destined to become famous, he finds the "major difference between couples who reserve their disputes privately and those who turn to a judge has to do with one overriding characteristic: maturity."

The people he sees in family courts, he has concluded, are mostly those who lack the horse sense to find another way.

When family courts were a new idea, there was great ambivalence about including divorce in their purview. The idea of the social reformers was to prevent that shameful failure, not to facilitate it. In those days, of course, Canada only had a few hundred divorces a year.

That was then. Brownstone's focus is almost entirely on divorce and its consequences. Tug of War and most of its chapters emphasize separation and custody to the exclusion of almost all else.

Tug of War is written less for lawyers and experts than for people who may be entering into family court battles - it's the book you recommend to your client who is heading in that direction.

Back in the 18th century, when William Blackstone wrote his Commentaries on the Laws of England, he addressed not so much the lawyers of the day as the educated lay reader who needed to know more about the law.  This book tries something similar. Brownstone: the Blackstone of family law?

Tug of War: A Judge's Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court by Harvey Brownstone was published by ECW Press in 2009.


Christopher Moore's most recent book is McCarthy Tétrault: Building Canada's Premier Law Firm, published by Douglas & McIntyre. His web site is www.christophermoore.ca. 

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