Cross-border custody quarrel

>> Complaints about a judge’s controversial remarks won’t get a native woman her kids back

by NOEMI LOPINTO

Audrey Isaac last saw her children on August 24, 1999, when they were locked in a room in a detention centre in New Carlisle, Quebec. The 10-year-old twin girls, Vanessa and Melissa, had been held there overnight. Isaac was given exactly one hour to say goodbye. “It was a nightmare. Everybody was crying,” says Isaac. “They were crying, ‘Don’t go mommy, I’m scared, I’m scared.’ I had to pull them out of my arms.”
Isaac, 42, was forced to hand over her children due to a judgement rendered August 23, 1999, by Quebec Superior Court judge, Frank G. Barakett. In his decision, Judge Barakett wrote that Isaac was “from a broken home on the reserve.... who unwittingly taught the children to be outlaws... Out of misplaced expressions of motherly love, they were brainwashed away from the real world into a child-like myth of pow-wows and rituals... She wants what is best for her children but has absolutely no idea or ability about how to achieve this goal.”

“Both of the psychologists had recommended a weaning period if I lost,” says Isaac, “to say good-bye. But immediately after the judge rendered his decision, he asked to see the children in chambers where they were seized and brought to the detention centre. When I saw them the next day I told them there was a reason for all of this, that God wouldn’t do anything to hurt us. My kids always looked to me for guidance, so I had to be calm.”
Isaac’s children were accessories in a long, acrimonious custody battle between herself and her American ex-husband, David Lavoie. The couple separated in March 1995 in California. On the morning of March 20, Isaac was served with a subpoena. Later that same afternoon, in what Isaac describes as a two-minute hearing, Lavoie was granted custody of the kids. Isaac says she didn’t have time to find a lawyer.

In October of that year, Isaac disobeyed a court order and stole away with the children. She brought them home to the Listuguj Mi’gmaq reserve on the Quebec-New Brunswick border, where they would live as fugitives, protected by family and the Listuguj Police Service. In July 1996, Isaac’s ex-husband entered the reserve in disguise, armed with pepper spray and handcuffs. He attacked Isaac and her 68-year-old mother, Alona. According to police reports, Lavoie broke one of Isaac’s fingers and hit her more than 10 times in the face and head, dragging Alona Isaac back from the house when she attempted to get help. He was arrested in Quebec and convicted of six different counts of criminal offences: assault, carrying a weapon, bodily harm, possession of a prohibited weapon and dangerous driving.
According to Isaac’s lawyer, Asher Neudorfer, after paying a fine of $15 for each count, plus a sentence of two weeks time served, Lavoie was returned to the U.S., where he began the judicial process that would ultimately grant him custody of the children three years later.

Clueless courts

In open court, Judge Barakett said pow-wows “sounded like the Rose Bowl.” He referred to the twins as “blond and freckled, with less than 50 per cent Indian blood in genetic terms... No more native than they are white.” Barakett said the children were “brainwashed,” “programmed” and “indoctrinated” into considering themselves native. Justice Barakett never acknowledged David Lavoie’s convictions, except to suggest the assaults “were to be expected, and understandable.” Barakett declared he too would have engaged in such behaviour “if that 68-year-old woman had kidnapped my child.” Barakett also dismissed the expert testimony of two psychologists, one of them the Crown’s own witness, who’d testified that the children should remain with their mother. He suggested to Isaac that she should “put (the children) on heroin, if she wants them to be happy all the time.”
Isaac’s Montreal-based lawyer, Neudorfer, petitioned the Quebec Court of Appeal to reverse the decision, but the three-judge panel dismissed the petition, writing that while some of the words used by the judge were inappropriate, “we are not convinced that his conduct demonstrated a serious apprehension of bias.”
In October 2000, the Assembly of First Nations, the Quebec Native Women’s’ Association, the Native Women’s Association of Canada, the Listuguj Mi’gmaq First Nation Government and the Assembly of First Nations of Quebec and Labrador filed 22 complaints with the Canadian Judicial Council against Judge Barakett and the Quebec Court of Appeal. They accused Barakett of “insensitivity, ignorance and bias against First Nations and their cultures” and the three Appeal judges of “discriminatory double standards; disregard for the rule of law; and fabrication of irrelevant and erroneous legal criteria in assessing the Barakett judgment.”

American charges complications

In October 2000, Mathew Coon Come, National Chief of the Assembly of First Nations, wrote to federal Justice Minister Anne McLellan and her Quebec counterpart Paul Bégin: “The pattern of conduct demonstrated by Judge Barakett is so appalling that it served to deny Ms. Isaac and her children their fundamental rights, including the right to equality and to a fair trial. The ignorance, insensitivity and bias exhibited by the Judge extends to women in general, when matters of criminal assault or domestic violence are involved.” Coon Come asked both ministers to intervene.

Under the Constitution Act, the judges of Canada’s superior courts can only be removed by Parliament. The Canadian Judicial Council has the power to establish seminars and investigate complaints. If the Council finds that a judge has “become incapacitated or disabled, been guilty of misconduct, or been placed in a position incompatible with the due execution of office,” the Council may recommend that the judge be removed from office. The CJC has no authority to hear appeals, overturn decisions, or order new trials. As of December 2001, the complaint against the Quebec Court of Appeal was dismissed; the complaint against Judge Barakett continues to be under review.

Neudorfer says the complaint to the CJC will not restore Isaac’s children to her. “If it succeeds it will have little impact on the two girls,” says Neudorfer. “It took a year to get into Appeal. The children were living in Florida. There was no sense in presenting a motion to review and change the custody of children who were not here.” Isaac’s only remaining option is to litigate in Florida, but there is still an outstanding warrant for her arrest in the U.S.A. on kidnapping charges.

Neudorfer, who has practiced family law for 15 years, says he’s not going to make her face the American judicial system as well. “Not after all she’s been through,” he says. “The native community has a long way to go to feel safe and properly defended by the judicial system and I don’t think this case helped. For many in the native community it has reinforced their misgivings. This case was an eye-opener for me, too. It’ll be the one case that is never going to let go of me, even if I wanted to let go of it. But my disappointment probably pales in comparison to what the girls and Audrey experienced.”

Audrey Isaac lives in Fredericton now. She communicates with her daughters by e-mail. She says she has good days and bad days. “I go through periods when I feel strong, and then I am overwhelmed with this craving and I cry and cry. I’ve had time to think about why this has happened to me and I think I need to help heal my people. We’re in pain, and pain is ugly. I am designing my life now with honesty and courage and I have to hang in there because I want my girls. I want to smell, and kiss, hug and see my kids.” :