A woman who claims her husband slashed her throat with a hunting knife on a 2010 trip to Jamaica, where he was found not guilty of the charge, has won a new trial in Ontario's courts to determine how much access he should have to their two children, aged 10 and 7.
Bank employee Cathy Clayson of Whitby, Ont., says the Jamaican verdict was botched and that her now estranged husband, teacher Paul Martin, did try to kill her on the last day of their vacation at a Montego Bay resort five years ago, leaving her bleeding by the roadside.
She went to court here last year seeking a divorce and trying to persuade an Ontario judge to declare that her husband had attacked her in Jamaica and to block his access to their children.
In a tense 20-day trial in an Oshawa courtroom, Ms. Clayson testified that she feared Mr. Martin would kill her or kidnap their children. Mr. Martin, who had no lawyer acting for him, cross-examined his estranged wife about her account of the alleged attack.
In a ruling issued on Dec. 30, Justice Roger Timms of the Ontario Superior Court cast doubt on Ms. Clayson's story and, while giving her sole custody, awarded Mr. Martin equal and unsupervised access to the children.
Ms. Clayson then retained prominent lawyer Marie Henein – who acts for disgraced ex-CBC personality Jian Ghomeshi – to launch an appeal, alleging that Justice Timms was biased against her.
And in a decision released last week, the Ontario Court of Appeal threw out Justice Timms' ruling. He called Justice Timms' attitude toward Ms. Clayson's evidence "dismissive" and "troubling," and concluded that he imposed a higher standard on her evidence "while the jarring inconsistencies in the husband's version gets [sic] a pass."
The appeal court also criticized Justice Timms for failing to put the interests of the children first. The appeal court ordered a new trial, and said the proceedings should not retry the disputed events in Jamaica for a third time.
Instead, an expert should assess how the children are coping with their father's current access visits, which are supervised by friends or family members, and "recommend an access plan for the children in the absence of a definite conclusion about the Jamaica event," the court ruled.
In an e-mailed statement from her lawyer, Martha McCarthy, Ms. Clayson said she was pleased with the ruling: "Although there is still a long road ahead, I can now move forward knowing that the Ontario justice system works for women like me."
A lawyer for Mr. Martin, Dani Frodis, said his client, who remains a teacher with the Durham Catholic District School Board, had hoped to put the legal battles behind him for the sake of his children: "He's disappointed that it's not over and that the kids still don't have any sense of finality."
In Jamaica, Mr. Martin initially claimed a Jamaican man attacked his wife. He later said that she had attacked him with the knife, and he had told police the earlier story in an attempt to protect her. Mr. Martin said his wife inflicted the 10-centimetre gash in her throat in the struggle as he pushed her away.
The appeal ruling lays out what it says are undisputed facts about the incident in Jamaica, which happened by the side of a road where Mr. Martin said he had driven their rental car to take photos. After the injury, Mr. Martin forced his bleeding wife back into the car and drove 17 kilometres without stopping to get help or using his cellphone. His wife was also seen with her legs dangling from the car, screaming for help, before she left the moving vehicle and he drove off.