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70 www.canadianlawyermag.com A new memoir and film, based on the life of Canada's first openly gay judge, Harvey Brownstone, reckons with family and criminal court dysfunction CANADA'S JUSTICE system is treating child custody as a legal problem when it's actually a healthcare problem, says Harvey Brownstone – the country's first openly gay judge – whose new memoir is both a personal reckoning and a sharp critique of the bench he served on for 26 years. Brownstone retired from the Ontario Court of Justice in December 2021. His memoir, Without Prejudice: My Life as a Gay Judge, published by ECW Press, traces a life that began with his mother, a French- Algerian Holocaust survivor who arrived in Canada speaking almost no English, through years on welfare after coming out to his parents at 19 to his appointment in April 1995 as the first openly gay judge in Canada. The book covers the bullying, the homophobia he encountered trying to get hired as a lawyer in the 1980s, the old boys' club that awaited him on the bench, his role officiating hundreds of same-sex weddings after Ontario legalized them, and the smear campaign that he says derailed his bid for chief justice in 2015. But it's his critique of the courts – unfiltered now that he's no longer bound by judicial conduct restrictions – that will land hardest on lawyers reading it. "Family court is much more emotion- ally draining than criminal court," he writes in Without Prejudice. "In criminal court, we see bad people at their best behaviour… But, in family court, we see good people at FEATURE CROSS EXAMINED Pulling no punches on broken courts their worst behaviour." So enmeshed in the turmoil of their breakdown, they often can't control themselves in court, he argues. A court system no one would build from scratch The adversarial structure designed for crim- inal matters, Brownstone argues, is poorly suited to the raw disputes between sepa- rating parents. "In family court, nobody wins. There's only degrees of losing," he says. "The biggest losers are the children." Legal solutions are often the wrong approach. High-conflict parents need psychologists, therapists, and social workers at least as much as they need lawyers, he says. During his years on the bench, Brownstone tracked the causes of relation- ship breakdowns in his courtroom. Infidelity, he found, drove roughly 90 percent of cases – the deceived partner pouring that fury into litigation over pillowcases, lawn furniture, Air Miles, even a stain on a child's T-shirt. He is clear-eyed about the scale of the problem. "If we were to start again from scratch to create a family court system," he says, "no one I know would create the system we have." A bench he helped transform Brownstone was 38 when he was sworn in at Old City Hall in Toronto, with then attorney general Marion Boyd in attendance – a historically unusual event. The judiciary he entered was still at the tail end of the old boys' club era. At his first posting, nearly all his colleagues were men in their 70s; beer filled the fridge at lunch and, on one occa- sion, they arranged a lap dance intended, he writes, as a form of conversion therapy. He says that culture had largely disappeared by about 2005 – partly due to the Hryciuk Judicial Council hearings of the mid-1990s and partly due to the Judicial Appointments Advisory Committee process introduced by then Attorney General Ian Scott, which replaced political appointments with an inde- pendent panel – producing "highly qualified lawyers who were experts in law and also had the people skills to preside in court with dignity," he says. "In family court, nobody wins. There's only degrees of losing. The biggest losers are the children"