PBSC Queen's Interivew with Justice Harvey Brownstone
By Katie Ling | Program Coordinator 2016/17
CELEBRATING 20 YEARS
“Over the past 20 years, we have seen PBSC become the most important good news story in Canada’s legal world because of the incredible work of law student volunteers.”
ON PBSC'S 20TH ANNIVERSARY
PBSC started as a small student based program at U of T, with no major sponsors in the legal community, and no public profile. Over the past 20 years, we have seen PBSC become the most important good new story in Canada’s legal world because of the incredible work of law student volunteers.
I am very proud of my ongoing involvement with PBSC. Of all of my professional accomplishments, I am most proud of inspiring the PBSC Family Law Project because it spread to every law school in the country. It has become such an important part of how the family court operates that I don’t think we could function without it.
ON GIVING BACK WITH PBSC
By working with PBSC, you improve your skill set, you make very valuable contacts while networking, and most importantly, you enhance the reputation of the justice system. Doing pro bono work is an investment in your own profession’s public credibility and reputation.
Giving back to the community is one of the most important aspects of being a lawyer. We must always remember that as lawyers, we have a unique license to give legal advice. No other profession has that right. When you become a lawyer and you are licensed with the Law Society, you have an exclusive right to give legal advice.
Sharing that advice through pro bono work is a way of thanking the community. It is a noble act of generosity that is very fulfilling, because the work brings justice. If you are doing your work well, you are bringing justice to people. And there is nothing more satisfying than justice.
ON PBSC'S AWARD-WINNING FAMILY LAW PROJECT
My involvement with PBSC began when I was asked to come and speak to the U of T law school in 1997. At the time, the family courts in most major centers were experiencing a major crisis because of severe Legal Aid cutbacks. We had a sudden avalanche of unrepresented litigants.
In my speech at U of T, I focused on the need for legal community to help the public and to use this as an opportunity to give students interested in family law a very effective way to gain valuable exposure to the family court process. I saw it as a win-win situation for students, for the public, and for the courts.
Inspired by that speech, the Dean of U of T law at the time (Ron Daniels) decided that he was going to launch a program designed to expose students to the realities of family court and provide much needed assistance to self-represented litigants who would otherwise not be able to effectively access the justice system: the PBSC Family Law Project.
ON WHY LAW STUDENTS SHOULD GET INVOLVED
When you’ve done FLP work, you are making a loud statement to potential employers that you have acquired very valuable experience working with family law clients in the courts. In my opinion, the very best young family law lawyers all started out as PBSC student volunteers.
The FLP has such credibility within the family law world. To my knowledge, most family lawyers looking to hire associates or articling students want to see that they worked in the FLP as a law student. They are looking for that type of experience.
Volunteering for PBSC also creates many unique networking opportunities. Many students have told me that they got articling jobs through connections made through the FLP. PBSC student volunteers get networking experience and valuable advice from duty counsel and other lawyers in the courts. Most importantly, they get to watch the courts in action.
Some of the best family lawyers we now have started out as PBSC volunteers in law school. Any law students pursuing a career in family law should definitely join PBSC, and especially, the FLP.
It is very important for students to focus on what their passions are, whether it be business, helping people resolve conflicts, or being problem solvers in some other context. Try to blend your passions in life with the legal knowledge you are going to acquire at school, so that you can make your legal education meaningful and satisfying to you as a person.
Whatever your interests are – if you are interested in entertainment, if you care about the environment, if you are a tech-savvy person – there is a way to incorporate a legal career into that. That is very important to keep in mind in pursuing a fulfilling and happy career.
The best approach when you are facing an obstacle is to prove that you are the best at what you do. Ultimately I have found that in the legal world, merit will always be the determining factor.
So whether you are facing prejudice, financial struggles, or other obstacles, remember: If you are the best at what you do, you will always be recognized. Because ultimately, in the legal world, talent rises to the top. Talent is appreciated. Everyone wants the best – every firm and every organization wants the best minds they can get. That was always my strategy: to work very hard and prove that I could be better than others in my field just to be considered equal.
I was the first openly gay judge in Canada. I had to overcome a huge barrier because when I was appointed to bench in 1995, many would have seen being openly gay as an obstacle. I hope that I opened some doors for future generations in doing that.
Then I had an instrumental role to play in the struggle for same-sex marriage. After same-sex marriage became legal in Canada, I made a point of making myself available to officiate at weddings for same-sex couples. This included hundreds of couples from other countries who came to Canada to get married, especially from the United States, when they couldn’t get married there. Thanks to the internet, I quickly became the face and voice of same-sex marriage.
I am very proud of these accomplishments. I am proud that I married Edith Windsor and her spouse Thea Spyer, whose marriage triggered the Constitutional litigation at the Supreme Court of the United States.
In the famous case of United States v Windsor, the couple whose marriage was the subject of the litigation got married in Toronto. I am very proud that Canada had a role to play in what I consider to be the last civil rights struggle in the United States.
ON PUBLIC LEGAL EDUCATION
Outside the courtroom, I have learned that the public is hungry for legal education.
When I wrote my book, I never ever expected that the media would latch onto it. I certainly never expected that it would become a bestseller. I learned very quickly that there is a hunger out there in the public for reliable, credible information about the family justice system.
I believe that judges are in the best position to give that information. We have credibility, extensive knowledge, and practical experience. Before Tug of War, judges had written books before, but they were catered towards law students and lawyers. I was the first judge to write a book that was aimed at the public. Tug of War was written for the public in plain language, and its reception demonstrated a huge public appetite for this kind of information. There is a public desire to demystify the family justice system. Judges are uniquely qualified to accomplish this task.
There has been some improvement toward judges speaking outside of the courtroom, but nothing substantial. There is a strong culture within the judiciary that judges speak only through their judgements. You have to have a specific skill set to be willing to speak effectively to the media, because you lose control – you have no idea how you are going to be quoted. I think that many judges don’t feel comfortable with that lack of control. It requires a combination of skill and comfort level.
We can’t give legal advice, and we can’t talk about individual cases that are currently before the courts. But we can give legal information, information about the law and about the justice system. It’s a fine line. I’m very comfortable with where to draw that line and I strongly believe that judges can be very effective in providing that legal information.
ON TUG OF WAR AND FAMILY MATTERS
The inspiration for Tug of War came from witnessing parents in extreme states of high conflict who, by the time they saw a judge in the court room, had already caused tremendous damage to their kids. I thought that if I could reach people before they engaged in high stakes war, I might prevent the kind of carnage that I was seeing in family court.
Up until the book was written, the only way people could ever have access to a judge was to come to court and get involved in a court case. My strategy was to give people this information straight from a judge before they made the crucial decision about how they were going to resolve their conflicts. I wanted them to know their options. My goal was to provide the tools for people to make the best informed decisions about how to reinvent themselves from ex-partners to co-parents.
The overarching message of the book is very simple. You have to love your children more than you dislike each other, and you must demonstrate emotional maturity in every aspect of post-separation contact with each other in order to insulate children from the harm that comes from parents in conflict.
After Tug of War became a national bestseller, I engaged in an extensive speaking and media tour to promote the book. For about 18 months, I travelled throughout Canada and the United States, appearing on numerous television and radio talk shows, and was interviewed for newspaper and magazine articles, while continuing to preside in court full-time. It was quite an intense experience.
A producer contacted me after having seen some of my television interviews. She felt that I had what it took to host my own show. We wanted to do a public education television show, where I would bring experts on the air, experts that the public would not normally have access to. These experts would provide information about relationships, the justice system, separation, parenting, and a wide variety of other topics.
We started online. In my opinion, people go to television for entertainment. When they are looking for information, they turn to the internet. The first season of the show was an online show. Then we were picked up by CHCHTV due to our success online. We did two seasons on the network, ultimately deciding to go back to the internet because of the international exposure.
We have a huge viewing audience in every English speaking country. The topics we covered are very universal. For example, we covered bullying, child abduction, gambling addiction, sex addiction, what happens to your pets when you separate, and how to be a successful step parent. These are all very universal topics that don’t depend on the law of any one country. That was very deliberate on my part.
We had the world’s leading experts on each topic come on the show. People who would have never otherwise agreed to appear on television came on Family Matters because of the credibility of having a judge host the show. We did a landmark episode on internet dating, where the Vice President of eHarmony appeared on the show. That was probably our most watched episode, because internet dating is such a huge issue.
We discussed issues that permeate every culture, every country, every socioeconomic class, and every legal system. I think that was the show’s secret to success.
Tug of War: A Judge’s Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court can be purchased in stores and online at Amazon, Indigo, and ECW. All proceeds from the sale of this book go to the Children’s Wish Foundation.
All of the episodes of Family Matters can be watched for free here.
ON THEIR IMPACT
I get letters regularly from people who say that reading Tug of War changed their lives, and saved them a lot of grief. As for Family Matters, I routinely get emails and letters from people who were touched by the show.
Mostly, people thank me for the information that they were able to get in a cost effective manner. The book and show cover the family justice system, about your options, explaining things like mediation, and that kind of thing. The show is free as long as you have access to the internet, and the book sells for under $20. The advice that you can get out of the book and the show is a lot more accessible to people than paying a lawyer $500 an hour to get the same information.
One of the things that makes me the happiest is when people tell me that their lawyers insisted that they read the book before they made any decisions about how they were going to proceed. There are a great number of family law firms, in Canada and in the United States, that require all clients to read the book. They give the book out to every client and tell them to read it.
That is very gratifying, because that is what I hoped would happen when I was writing the book. If I had my way, the courts would be handing the book out to anyone involved in a custody dispute. The information covered in the book is critical to understanding what family court is and what it isn’t. What the court is going to expect from you, and what you should expect from the court. It covers very crucial information that most people who come to court don’t acquire.
To my knowledge, I don’t believe there are courts handing out the book. My hope is that the courts will buy it in bulk and hand it out to litigants because they come to courts with very little information. In most major centers in Canada, we still have over 70% of litigants in family court that are self-represented. The book would be very helpful to them if they were to come to court and represent themselves in a custody dispute. I know that there are judges who buy copies of the book in bulk and give it out to litigants in the courtroom. I know the book is heavily borrowed at libraries. Many judges will tell people to read the book, and if they can’t afford to buy it, to go to the library. But the court’s administration has never handed it out.
ON ACCESS TO JUSTICE IN THE FAMILY COURTS
The major access to justice issue in family courts is how to make system accessible and responsive to people who are self-represented, given that the system was never designed to be navigated by people without legal representation.
The biggest challenge by far, in the family courts, is how to make the system effective for people who don’t have lawyers. In Toronto, 82% of family court litigants are self-represented. The national average is around 70%. The rules of procedure, the rules of evidence, and the substantive law, are complicated. It is very difficult for a person who is not legally trained to navigate that system.
ON FAMILY LAW
My exposure to the family courts as a student changed my life. That is why I am passionate about PBSC student volunteers coming into the courts.
My life changed when I got a chance to work in the family court. I realized this is where I wanted to spend my career. I wanted to work with people in crisis, with their relationships, and with their children. My dream was not only to go into family law but also to become a judge.
The great thing about family court is that you are not just helping people, you are healing people. I have always felt that the family justice system was part of the healthcare system, not just the legal system. Because family breakdown is such an epidemic, and it affects the wellbeing of children to such a degree that when parents are unable to resolve their conflicts peacefully, it affects the mental health of parents and children.
These are people in conflict. The best way to really get a feel for what family court is and what family clients are going through, and to even discover whether this is something you might be interested in doing as a career, is to go there and to work there. You can’t really get a feel for family law by reading cases and reading legislation.
ON THE FUTURE OF FAMILY LAW
The next frontier in family law will be integrated domestic violence courts. The concept is one family, one judge.
There are a large number of litigants who are in both criminal court and family court. They are in criminal court because they have been charged for assaulting a spouse or child, and they are in family court because they are going through a separation, custody battle, child support, or the Children’s Aid Society has apprehended their children.
When the two courts are completely separate from each other, you often have inconsistent court orders. For example, you have probation orders that are inconsistent with what a family court needs to do. Sometimes the family court is working on reunification of the family but the criminal court orders in place don’t allow it.
I would like to see, as they do in the United States, an integrated domestic violence court where both the criminal and the family issues are handled by one judge. The child’s lawyer is present, the Children’s Aid Society is present if they are involved, and you get one court case that deals with everything and resolves the family issues in a holistic way. It is cost effective, and I think it is the most effective way for families to obtain justice in a holistic way.
ON THE IMPACT OF PBSC VOLUNTEERS IN THE FAMILY COURTS
PBSC student volunteers have become essential in enabling the extraordinarily high number of unrepresented litigants to get their story before a judge. Without the PBSC student volunteers sitting down with clients and getting them to tell their story in a complete, chronologically organized way, they would have a much harder time in family court.
Before we had the help of PBSC student volunteers, it was very difficult to get evidence from self-represented litigants. They wouldn’t know what was relevant when they would fill out legal forms by themselves. For example, they would claim a need for an emergency restraining order, but they wouldn’t say why. Why were they afraid of their spouse? What did he or she do to cause you to have fear? You have to establish grounds for the relief and show evidence to justify the order you are seeking.
Students understand the need for evidence. They illicit evidence from the clients and write it down so that when the judge gets the paperwork, the judge can make an informed decision about whether or not to grant the order. That’s the beauty of having PBSC student volunteers assisting self-represented litigants.
ON JUDGES AS AMBASSADORS
From my personal experience in the courtroom, I have learned that people will assess the justice system on the basis of their personal experience in the courtroom. Every litigant will judge the justice system, the fairness of it, the inclusivity of it, the accessibility of it, and the expeditiousness of it, based on their experience in court.
Every aspect of justice system will ultimately be assessed by the litigant by their own personal experience in the courtroom. The judge is the face and voice of the justice system, and every judge has the responsibility to be a good ambassador.
In addition to adjudicating in the court room, I very much believe that the best way for judges to enhance access to justice is to empower people with information about the system so that they can make the best informed decisions about how to utilize the system to meet their needs and the needs of their children. That has always been my mission as a judge.
I love the fact that in my time as a judge, I was able to make the judiciary a little more transparent. To demystify the family court process, to show the public that the judiciary does care about the people who come to court. We want them to have the best information. As judges, we see ourselves not just as adjudicators but also as public educators.
ON SUPREME COURT JUSTICE ROSALIE ABELLA
After my second year of law school, I got a summer job as a clerk at the family court downtown at 311 Jarvis Street. In 1979, I had the good fortune to clerk for Justice Abella. I couldn’t have known then that she would go all the way to the Supreme Court of Canada, but I did know that she was a remarkable person and judge.
She was everything a judge should be: the way she interacted with the litigants, the way that she applied the law, the way that she put people at ease in her courtroom, and the way she interacted with counsel and staff. She was the judge I always hoped I could emulate.
Justice Abella was my role model and my mentor. She believed in me as an openly gay law student at a time when I was being told by everyone that it would limit my career options. She believed in me and urged me to trust that if I worked hard and demonstrated my talent, my sexual orientation would be irrelevant. And she was right. So in many ways I owe my career to her, because she was my inspiration.
ON QUEEN'S LAW '80
My fondest memory from my time at Queen’s Law was the feeling of being part of a family.
After I came out in 1976, I became estranged from my family. It was a different world then. During that painful period, the Queen’s law faculty and students became my family. I felt very supported, I felt strong and resilient.
So my happiest memories when parents were having difficulty accepting that I was gay were being with the Queen’s Law faculty and students. I was able to endure the pain and the sense of isolation from my family because of the tremendous love and support that I got from my Queen’s law classmates and professors.
When I received the Distinguished Alumni award in May, 23 of my classmates from Queen’s Law ‘80 were there to cheer me on. That was very much appreciated. I have maintained my friendships from Queen’s Law, and remained good friends with about 40 of my classmates.
Law ‘80 is one of the most active and most involved classes ever from the law school. We have the biggest turn out at Queen’s events, especially Homecoming. We were a very special year. I was extremely lucky to be a part of Law ‘80 because it was obviously a very special group of people.