His memoir is an unfiltered reckoning with family and criminal courts – and the judiciary that runs them
Canada’s justice system is treating child custody as a legal problem when it’s actually a health care 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 being thrown out of the house at 19 when he came out to his parents, 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 in 2003, 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 emotionally 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 their worst behaviour.” So enmeshed are the parties in the turmoil of their relationship breakdown, he argues, that they often can’t control themselves in court.
A court system no one would build from scratch
The adversarial structure that is designed for criminal matters, Brownstone argues, is poorly suited to the raw disputes of separating 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 relationship 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 after a weekend visit.
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 in 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 occasion, his new colleagues arranged for a lap dance intended, he writes in the memoir, 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 independent panel. The reformed system produced “highly qualified lawyers who were experts in law and also had the people skills to preside in court with dignity,” he says.
His own contribution to the bench’s cultural shift included a practice then considered revolutionary: talking directly to litigants. When he was a lawyer, judges addressed only counsel – clients sat voiceless, often leaving with no idea what had been decided about their lives. Brownstone changed that, inviting litigants to ask him questions and explaining his decisions in plain terms. Within a few years, lawyers were pressuring their colleagues to do the same, he says.
His 2009 book Tug of War – the first book by a sitting Canadian judge written for a general audience on family law – was an extension of that impulse. His chief at the time offered no support; it was Justice Rosalie Abella, then on the Supreme Court of Canada, who told him to publish it. The book became a bestseller. All royalties went to the Children’s Wish Foundation.
Life after the bench
Brownstone retired in late 2021, partly pushed by the pandemic’s shift to Zoom proceedings – “a very, very challenging way to try to connect with people emotionally,” he says – and still carrying what he describes as the bitterness of the 2015 chief justice process. He says he was asked to submit his name to be chief justice at the time, but “I became the victim of some serious homophobia within the judiciary and a smear campaign that ended up in the media.”
His reinvention since then has been striking. The Harvey Brownstone Interviews YouTube program, launched in 2021, attracts millions of viewers and airs on television in the United Kingdom.
A Hollywood feature film based on the memoir, directed by Shane Stanley and starring David Arquette as the judge, with David Mazouz as the young adult Harvey, is in post-production and expected to premiere in the fall of 2026.
For the legal community, it is the book’s account of the courts – written without the muzzle of judicial conduct restrictions – that will carry the most weight. The access-to-justice challenges Brownstone raises have preoccupied courts, bar associations, and governments for decades. His argument – that the family court model is structurally broken and only a therapeutic, less adversarial approach will fix it – is not new in legal reform circles. But it carries unusual weight coming from a judge who presided for a quarter century, tracked the data in his own courtroom, and is now free to say so.
Without Prejudice: My Life as a Gay Judge is published by ECW Press and available May 26, 2026.
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