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


Tug of War is the first book of its kind. Written by a sitting family court judge in layman’s language, it demystifies complex family law concepts and procedures, clearly explains how family court works, and gives parents essential alternatives to resolve their own custody battles and keep their kids out of the often damaging court system. Breakup rates in North America are skyrocketing. Recent statistics say 45% of marriages end in divorce, and at the centre are countless children, thrust by their families into...
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Tug of War is the first book of its kind. Written by a sitting family court judge in layman’s language, it demystifies complex family law concepts and procedures, clearly explains how family court works, and gives parents essential alternatives to resolve their own custody battles and keep their kids out of the often damaging court system. Breakup rates in North America are skyrocketing. Recent statistics say 45% of marriages end in divorce, and at the centre are countless children, thrust by their families into a complex and seemingly impermeable family court system. Tug of War explains the role of lawyers and judges in the family justice system, and examines the parents’ own responsibilities to ensure that post-separation conflicts are resolved with minimal damage to the children stuck in the middle of parental disputes. Justice Harvey Brownstone explores themes that apply to all families and parents in conflict. He draws on fourteen years sitting on the family court bench to provide clear case examples with inclusive and accessible language. Tug of War describes alternatives to litigation and exposes the myth that parents can represent themselves without a lawyer in family court. Justice Brownstone discloses the inner struggles of parents, judges and lawyers in the maelstrom of marital conflict. This book is a must-read for couples involved in or contemplating separation, family law judges, lawyers, mediators, parenting coaches, psychologists, family counselors, social workers, students and professors of family law at law schools. It is endorsed by judges currently sitting in Ontario and New York State.
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Editorial Reviews

From the Publisher

"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 . . . [and] provide[s] better guidance to clients, especially the final chapter that is full of heartfelt and wise advice."  —The Lawyers Weekly

"Every lawyer should provide clients with a copy of Tug of War and encourage them to read it before proceeding with their case."  —Anu Osborne, The Canadian Bar Association

The Lawyers Weekly

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 . . . The final chapter . . . is full of heartfelt and wise advice.

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Product Details

  • ISBN-13: 9781550228700
  • Publisher: ECW Press
  • Publication date: 4/1/2009
  • Pages: 200
  • Product dimensions: 5.90 (w) x 8.70 (h) x 0.70 (d)

Meet the Author

Harvey Brownstone has been a judge for more than 12 years and presides over family court in North Toronto. He lives in Toronto.
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Read an Excerpt

AFTER MORE THAN FOURTEEN YEARS OF PRESIDING IN FAMILY COURT, ONE QUESTION HAS NEVER CEASED TO AMAZE ME: how can two parents who love their child allow a total stranger to make crucial decisions about their child’s living arrangements, health, education, extracurricular activities, vacation time, and degree of contact with each parent? This question becomes even more mind–boggling when one considers that the stranger making the decisions is a judge, whose formal training is in the law, not in family relations, child development, social work, or psychology. Now add the fact that, because of heavy caseloads and crowded dockets, most judges have to make numerous child custody, access, matrimonial property, and support decisions every day on the basis of incomplete, subjective, and highly emotional written evidence (called affidavits), with virtually no time to get to know the parents and no opportunity to meet the child whose life is being so profoundly affected. What person in their right mind would advocate for this method of resolving parental conflicts flowing from family breakdown? These are some of the questions that family court judges agonize over. Some say the answers are complicated and have much to do with social conditioning, economic class, levels of education, sophistication, familiarity with community resources, and even culture. I say the answers are simple.

The institution of marriage has not been a great success in North America. The United States has the highest divorce rate in the western world, followed by the United Kingdom and Canada.1 Moreover, divorce statistics do not take into account couples who lived in common–law (unmarried) relationships and broke up. There is no reliable way to track the breakup rate for those couples, but you can be sure that it is at least as high as the divorce rate. There are also many thousands of couples who never lived together, but had a casual relationship resulting in the birth of a child. Family courts are heavily populated with such couples, but we have no way of knowing their numbers in society at large.

We do know that the vast majority of couples who break up manage to settle their affairs, including the custody and access arrangements for their children, without ever setting foot in a courtroom. The most common way to achieve this is by separation agreement or some other form of domestic contract (see Chapter 12). However, for the many couples unable to reach agreements, the family court becomes the place of first and last resort.

What we judges see in family court is beyond belief and certainly more dramatic and gut–wrenching than any television show or movie. If you don’t believe me, visit any family courtroom in any town and chances are you’ll see real–life examples of what I will describe in this book. As any family law lawyer, judge, or litigant will tell you, family court litigation is expensive, time–consuming, unpredictable, and highly stressful. The level of hostility and anger between parents involved in high–conflict custody disputes is often so toxic that it is almost palpable. I have dealt with thousands of couples whose bitterness toward each other coloured every aspect of the proceedings and completely diverted the focus away from the children and their needs. Frequently, I get the impression that such parents are in a struggle over power and control or are on a quest for vengeance and self–validation that has nothing to do with their children. Imagine how difficult it is for a judge to make the best possible decision regarding a child’s living arrangements when faced with parents who seem unable or unwilling to focus on their children. Sometimes I have had to involve a child protection agency and place the children in foster care to insulate them from the parental conflict (see Chapter 11). On more than one occasion I have been told by a parent that he/she would rather have his/her children living in foster care than with the other parent. On one even more appalling occasion, I was told by a parent that it would be better for the children to be dead than to live with the other parent! This is the tragic reality of family court.

Everyone who works in family law, including judges, agrees on two things: family court is not good for families, and litigation is not good for children. The emotional carnage resulting from family litigation, and its impact on the unfortunate children of warring parents, cannot be overstated. And yet, family courts everywhere are jammed with couples asking judges to decide who gets custody of their children, how often the children will see the noncustodial parent, how the matrimonial property is to be divided, and how much spousal and/or child support must be paid. More surprisingly, an alarmingly high number of people appear in court without a lawyer and try to navigate the court process on their own, without any idea of their rights and obligations, the procedural requirements, the rules of evidence, or the types of orders a court can and cannot make. As you might expect, the results for these people are often extremely frustrating at best and disastrous at worst.

Ask anyone who has ever appeared in family court as a litigant — even if they had a lawyer — and they are almost certain to describe their experience as unsatisfactory. Why? What can be done to help people so that their family court experience is more predictable, more positive and constructive, less time–consuming, and consequently more beneficial to themselves and their children? An even more important question is, What can be done to help people avoid going to court in the first place? That is what I am going to explain in this book.

What is the difference between the couples who settle their disputes privately and those couples who require a judge to make the decisions? Do the parents in the first group dislike each other any less than those in the second group? Does the first group have access to resources unavailable to the second group? Do the two groups come from separate and distinct socio–economic or cultural groups? Not in my experience. In my opinion, the major difference between couples who resolve their disputes privately and those who turn to a judge has to do with one overriding characteristic: maturity. We who work in family court know that a person’s maturity level has nothing to do with economic circumstances, education, culture, race, religion, or sexual orientation. We see rich people and poor people in our courtrooms, and we see people from all walks of life and from every racial, cultural, ethnic, and religious background, and from every lifestyle and orientation imaginable. Trust me: judges see it all. What we don’t see very often in our clientele is maturity.

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Table of Contents


Foreword by Chief Judge Tedford G. Andrews,
Foreword by Justice James D. Karswick,
Foreword by Judge Paula J. Hepner,
CHAPTER ONE Do you know what you're getting into?,
CHAPTER TWO Why family court should be the last resort,
CHAPTER SIX Custody and access disputes: "the best interests of the child",
CHAPTER SEVEN Joint custody: if parents are equal, why do so few have it?,
CHAPTER EIGHT Paternity and child support,
CHAPTER NINE The "connection" between access and child support,
CHAPTER TEN Parallel cases in criminal and family court,
CHAPTER ELEVEN When private disputes become a public concern: calling in the child protection authorities,
CHAPTER TWELVE So now what? After your dispute is resolved,
Suggested reading,

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