



COURT OF APPEAL FOR ONTARIO

CITATION: Clayson-Martin
    v. Martin, 2015 ONCA 596

DATE: 20150904

DOCKET: C59826

MacFarland, Rouleau and Lauwers JJ.A.

BETWEEN

Cathy Clayson-Martin

Applicant
(Appellant)

and

Paul Martin

Respondent
(Respondent)

Marie Henein, Martha McCarthy, Danielle Robitaille and
    Jenna Beaton, for the appellant

Dani Z. Frodis and Robyn Switzer, for the respondent

Heard: June 15, 2015

On appeal from the judgment of Justice D. Roger Timms of
    the Superior Court of Justice, dated December 30, 2014, with reasons reported
    at 2014 ONSC 7530.

MacFarland J.A.:

[1]

This is a custody and access dispute over a boy and girl, ages 10 and 7.

[2]

The wife appeals the trial judges order granting the wife sole custody
    of the children, because it provides for their children to have generous access
    to the husband; she submits that access should have been terminated because the
    husband tried to kill her. The parties were married July 17, 2004, and
    separated December 23, 2010, as the result of an incident which occurred in
    Jamaica. Each party alleges that at the end of the vacation, while on a
    deserted road from which the husband had wanted to photograph their hotel, the
    other attacked with a knife. This incident was the predominant focus of the 20-day
    trial which is the subject of this appeal.

I.

OVERVIEW

[3]

The parties marriage was in trouble in 2010, and the wife wanted to
    separate from the husband. He persuaded her to go on one last trip with him to
    Jamaica for a week in December to try to save the marriage.

[4]

After leaving the hotel in Jamaica to return to Canada on December 23,
    2010, the husband drove the wife to a secluded road, known as Flamingo Beach
    Road, where, on the wifes evidence, he slit her throat, forced her into the
    vehicle after she attempted to flee, strangled her, and then drove seventeen
    kilometres before she was able to jump from the moving vehicle and escape. She
    was taken to hospital by a passerby.

[5]

In stark contrast to this account, the husband now says

that it was the wife who was the aggressor
    on the secluded road in Jamaica. She attacked him with a knife. He assumes,
    although he didnt see, that she sustained the wound on her neck by her own
    hand when he, in self-defence, pushed her hand bearing the knife away from him.
    This story differs from the one he told Jamaican police shortly after the
    incident occurred. At that time, he said his wife was injured by a Jamaican man
    who had attempted to rob the couple. I will return to this discrepancy in the husbands
    accounts later in these reasons.

[6]

The trial judge concluded at para. 187 of his reasons:

I cannot find, even on a balance of probabilities, that the
    respondent attacked the applicant on Flamingo Beach Road on December 23, 2010
    as described by her. If anything the evidence tilts in the opposite direction.
    In the final analysis, I am not prepared to make a finding either way.

II.

FACTS

[7]

Counsel for the wife began her argument by outlining the facts that are
    not in dispute. It is helpful to repeat them. It is not in dispute that:

1.

the wife suffered a knife wound to her throat, 10 cm in length extending
    from ear to ear, and which caused profuse bleeding;

2.

there were only two people present at the time, the wife and the husband;

3.

the wife suffered a deep cut to her thumb;

4.

the husband suffered no knife injuries;

5.

the husband forcibly carried the wife back to the car, shoved her in the
    drivers side and held her as he drove from the scene;

6.

the husband drove for 17 kilometres with the wife bleeding profusely and
    did not stop once to get help;

7.

the husband also drove onto a dirt road during this time;

8.

the wife was observed to have her feet dangling out of the car and
    screaming for help;

9.

the wife either jumped, was pushed, or slipped out of the moving car;

10.

the husband, after the wife exited the car, continued to drive, leaving
    the wife with her throat slit by the side of the road;

11.

the husband did not stop or use his cell phone to get help;

12.

the husband repeatedly told police that a big Jamaican man had attacked
    them, slit the wifes throat and fought with them;

13.

the husband admitted that the story he told police involving a Jamaican
    man was a complete fabrication;

14.

his stated reason for telling this lie was to protect his wife from
    being charged with his attempted murder;

15.

the husband maintained this lie even after he was arrested and charged
    with attempted murder of his wife;

16.

the wifes version of what occurred has been consistent throughout: my
    husband slit my throat.

(1)

The Wifes Evidence

[8]

The wifes evidence was that after checking out of their hotel, the husband
    drove to the deserted Flamingo Beach Road. The husband told her he wanted to
    take photos of the hotel where they had been staying. The wifes evidence was
    that she had not really wanted to go to Jamaica in the first place. She thought
    it was unsafe and felt nervous being there. She was seated in the front
    passenger seat
[1]
and remained in that seat with her door locked while the husband got out of the
    car to take photographs.

[9]

The husband opened the car from the rear passenger door, unzipped the
    knapsack that was in the backseat, leaned into the backseat and attacked from
    behind by slashing her throat. The wife felt a stinging sensation on her neck,
    turned and saw the husband holding a bloody knife with a hooked tip. She
    realized her throat had been cut and as she reached for her neck the husband
    attacked her again and cut her thumb.

[10]

The
    husband closed the back passenger door and tried to open the front passenger
    door, but it was locked. As the husband moved around the outside of the
    vehicle, the wife, who had the car keys, moved across the console to the
    drivers side thinking she could lock the husband out of the car and escape. As
    she moved across the front seat, she reached back to lock the back doors. The wife
    then observed the husband climbing into the car via the rear hatch. The wife
    exited the vehicle and ran screaming down the road. The husband caught up with
    her and forcibly carried her back to the car. He found the passenger doors
    locked, carried her to the drivers door, and brought her into the car on his
    lap between him and the steering wheel. The husband then strangled her by
    putting her in a choke hold. She was terrified, thought she was dying, and her
    bladder released. The husband pushed her off his lap and began driving,
    restraining her by the arm as she cried and begged for her life.

[11]

The
    wife asked the husband to get help for her and said they would blame her injury
    on a Jamaican robber. The husband continued to drive for some seventeen
    kilometers, both on the main highway and on another isolated road. When back on
    the main highway the wife got the car door open, kicked her legs out of the
    door and screamed for help. She then jerked the steering wheel which caused the
    husband to release her wrists, and she jumped out of the moving car, landing on
    her hands and knees. The husband continued driving.

(2)

The Husbands Evidence

[12]

The
    husband says that after arriving at Flamingo Beach road, he invited the wife to
    take photos with him. She refused and they argued. He was angry and left the
    car. The wife also got out of the car, enraged and armed with a knife. She
    plunged the knife at him. In the ensuing struggle the husband pushed the wifes
    hands away from himself and it was at that point that the wife was cut on the
    neck.

[13]

When
    he realized she was hurt, he put her in the car and reassured her they would go
    to the hospital. He mentioned they would need to explain what happened if the
    police got involved. The wife suggested they say they were robbed by a crazy
    Jamaican man. He eventually agreed.

[14]

While
    driving, the wife started to fight again and grabbed the steering wheel. He
    pulled over, and the wife got out of the car and would not come back in. He
    drove off quickly to get help. He estimated that in less than two minutes, he
    returned to where he had left her, but she was not there. He pulled over in
    front of a nearby house and asked the occupant to call 911.

[15]

Captain
    Swaby arrived at the scene to interview the husband, who said they had been
    robbed by a Jamaican man. The husband then gave a police statement. That
    statement was handwritten by Detective Sangster and signed by the husband. The
    statement re-iterated that they had been robbed. It was almost a complete
    fabrication. At trial, the husband admitted to having lied to Jamaican police,
    but said he did it to protect his wife. He also denied having said several
    things in the police statement. He was initially charged with attempted murder,
    but was tried in Jamaica on a reduced charge of wounding with intent. He was
    acquitted.

III.

ISSUES

[16]

The
    wife raises three main grounds of appeal. First, she submits that the trial
    judge erred in law by admitting a transcript of the evidence of blood expert Sherron
    Brydson. That evidence was given at the husbands criminal trial in Jamaica in
    2011 on the charge of wounding with intent.

[17]

Second,
    she argues that the trial judges conduct during the trial raises a reasonable
    apprehension of bias. The wife submits that the trial judge misapprehended
    evidence, gave uneven scrutiny to witness evidence supporting the wife as
    compared to evidence supporting the husband, and differentially assessed the
    credibility of the wife versus the husband. She further argues that the trial
    judge failed to maintain and carry out his role as the independent arbiter:
    entering the fray, taking over the questioning of witnesses, and advancing theories
    raised by neither party. She submits that he demonstrated disdain for the
    applicant, was on numerous occasions disrespectful to her counsel, and that his
    interim rulings demonstrate his bias in the husbands favour.

[18]

Third,
    the wife submits that the trial judge failed to properly assess the best
    interests of the children and in particular failed to consider domestic
    violence as is required by s. 24 of the
Childrens Law Reform Act
,
    R.S.O. 1990 c. C.12 (the 
CLRA
).

[19]

In
    all of the circumstances, the wife submits that she did not receive a fair
    trial which has resulted in a miscarriage of justice. She seeks a new trial.

[20]

The
    central question addressed by the trial judge was this: what actually occurred
    on December 23, 2010 on that deserted road in Jamaica? Did the husband slit the
    wifes throat as she alleges? Or was she the aggressor, who, as the husband
    suggests, accidentally caused her own throat to be slit in the course of the husbands
    self-defence.

IV.

ANALYSIS

(1)

Improper Admission and Reliance on Hearsay Evidence

[21]

Ms.
    Brydsons blood evidence was central to the trial judges assessment of the wifes
    credibility.

[22]

Ms.
    Brydson was the blood expert called by the Crown prosecutor at the husbands
    criminal trial in Jamaica. She examined the vehicle on January 5, 2011 for the
    presence of blood.

[23]

The
    wifes evidence was that after her throat was slit, she put her hand to her
    neck to stop the bleeding and the husband tried to get into the vehicle. She
    reached back behind her to lock the back passenger door and across the drivers
    side to lock the other doors.

[24]

At
    the husbands criminal trial, the following exchange took place between Ms.
    Brydson and counsel for the husband:

Q.      You saw no smudge, no stain, no droplet on any control
    on the left or buttons on the left rear passenger door?

A.      Thats correct.

Q.      And the same is true for the right rear passenger door?

A.      Thats correct.

[25]

Ms.
    Brydsons evidence was that she found no indication of blood in the backseat
    area of the car.

[26]

The
    husband sought to admit the transcript of this evidence over the wifes
    strenuous objection.

(a)

The Hearsay Objection

[27]

The
    trial judge admitted Ms. Brydsons evidence under the principled exception to
    the hearsay rule, as articulated by the Supreme Court of Canada in
R. v.
    Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787. The principled exception
    allows the admission of a hearsay statement if two conditions are fulfilled:
    necessity and reliability. While these are separate requirements, they should
    not be considered in isolation, as one could affect the other:
Khelawon
,
    para. 77.

[28]

Necessity
    is to be interpreted flexibly, and is not restricted to the absolute
    unavailability of a witness:
Khelawon
, para. 78. Given that Ms.
    Brydson was in Jamaica and not Ontario, that the parties focus was on the
    reliability requirement, and the conclusion I come to on that issue, I need not
    discuss necessity further.

[29]

Reliability
    is to be assessed functionally, by focusing on the particular dangers raised
    by the hearsay evidence sought to be introduced and on those attributes or
    circumstances relied upon by the proponent to overcome those dangers:
Khelawon
,
    para. 93. In general, the reliability requirement can be satisfied by showing
    either of the following conditions.

[30]

First,
    it is possible that despite being hearsay, there is no real concern about
    whether the statement is true or not because of the circumstances in which it
    came about:
Khelawon
, para. 62. In other words, though the statement
    is hearsay, we can put sufficient trust in [its] truth and accuracy:
Khelawon
,
    para. 62. The court may consider the presence of corroborating or conflicting
    evidence to determine the inherent trustworthiness of the statement:
Khelawon
,
    paras. 93-95. The court may also consider whether the declarant was able to
    perceive the events described in the hearsay statement:
R. v. Smith
,
    [1992] 2 S.C.R. 915, at pp. 933-35.

[31]

Alternatively,
    it may be that no real concern arises from the fact that the statement is
    presented as hearsay because, in the circumstances, its truth and accuracy can
    nonetheless be sufficiently tested:
Khelawon
, para. 63. This
    requirement may be met if the declarant is available for cross-examination:
Khelawon
,
    at para. 66.

[32]

In
    all cases, the principled exception to the hearsay rule operates as a
    case-by-case exception, and courts must resist any temptation to reduce the
    principled exception to a categorical or pigeon-holing exercise:
Khelawon
at para. 45.

[33]

In
    this case, the trial judge relied on the decision of the Supreme Court of
    Canada in
R. v. Hawkins
[1996] 3 S.C.R 1043 to conclude that the
    evidence should be admitted based on the principled approach to the hearsay
    exception. He found that the necessity requirement was satisfied because the husband
    represented that Ms. Brydson was not available to give evidence either in
    person or via video link, as other witnesses had done.

[34]

As
    to reliability, the trial judge said at paras. 150 and 151:

With regard to reliability, in
Hawkins
,
supra
,
    the Court held that presence of an oath or affirmation and the opportunity for
    cross examination more than adequately compensate for the trier of facts
    inability to observe the demeanour of the witness in court. The absence of the
    witness at trial goes to the weight of such testimony, not its admissibility.

The evidence of Ms. Brydson is also reliable. When she
    testified in the criminal trial in Jamaica, she was under oath. She was a
    witness for the prosecution. She was cross-examined by the defence. In the end,
    a transcript of all of her evidence, both in chief and in cross, was filed in
    this case.

[35]

That
    Ms. Brydsons evidence was under oath does not speak to her reliability. It
    speaks only to her veracity and credibility as a witness. Since the concern
    here is not that Ms. Brydson may have been
lying
but rather that she may
    have been mistaken, the oath does not assist.

[36]

Given
    that the true issue was reliability, the trial judge should have considered the
    following: that the wife was not a party to the criminal proceedings, had no
    opportunity to cross-examine Ms. Brydson, and that while Ms. Brydson was
    cross-examined in Jamaica, this cross-examination was conducted by the husband,
    whose interests were diametrically opposed to those of the wife.

[37]

Hawkins
was a very different case. And the role played by cross-examination in that
    case is clearly distinguishable.
Hawkins
involved incriminating statements
    by an accuseds girlfriend made under oath and cross-examination at a
    preliminary inquiry. Shortly thereafter, the girlfriend retained her own
    counsel and in subsequent testimony recanted key portions of her previous
    testimony. Following the preliminary inquiry and prior to trial, the accused
    and the girlfriend married and the now-wife was no longer a competent witness
    for the Crown due to the common law rule of spousal incompetence. The Crown
    then offered no evidence in support of the conviction and the jury rendered a
    directed acquittal.

[38]

The
    majority of the Court of Appeal agreed that the witness was not competent for
    the Crown, but held that the evidence could have been admitted pursuant to s. 715
    of the
Criminal Code
, or alternatively under the principled exception
    to the hearsay rule. The court set aside the acquittals and ordered a new trial.
    The Supreme Court dismissed the appeal, holding that the preliminary inquiry
    testimony was admissible. At paras. 76, 80, and 83 of the majority reasons, the
    court stated:

We are persuaded that a witness testimony before a preliminary
    inquiry will generally satisfy this threshold test of reliability since there
    are sufficient guarantees of trustworthiness.

A preliminary inquiry will involve precisely the same
    issues and the same parties as the trial
. The hearsay dangers associated
    with testimony in such an adjudicative proceeding are minimal. Preliminary
    inquiry testimony is given under oath,
and is also subject to the adverse
    partys right to contemporaneous cross-examination
. It is only tainted by
    the lack of the declarants presence before the trier of fact.



In this instance, the statements of Graham were made under oath
    before a properly constituted preliminary inquiry, and
they were subject to
    the opportunity of contemporaneous cross-examination by counsel for both
    Hawkins and Morin
(an opportunity which appears to have been vigorously
    exercised in this instance). As well, the statements of Graham were transcribed
    under circumstances which support their authenticity. Accordingly we find that the
    statements of Graham before the inquiry satisfy the criterion of reliability.



For the purposes of these appeals,
we are not called upon to
    decide whether testimony given in a prior adjudicative proceeding, other than a
    preliminary inquiry may be similarly received into evidence at a criminal trial
    under a principled exception to the hearsay rule.
[Emphasis added.]

[39]

Unlike
    in
Hawkins
, this case was not about evidence given at a preliminary
    inquiry in the same proceeding. Ms. Brydsons evidence was given at a criminal
    trial in Jamaica and although the husband was a party to that proceeding, the wife
    was not. There was no opportunity for contemporaneous cross-examination from
    the wifes perspective. The Crown prosecutor led Ms. Brydsons
    evidence-in-chief and the husbands counsel cross-examined her. It cannot be
    assumed that it was in either partys interest to discredit this witness
    evidence or suggest that her blood inspection may have been superficial. The wifes
    goal in cross-examining Ms. Brydson would be quite different from either the
    Crowns or the husbands at the criminal trial. It would be in her interest to argue
    that because Ms. Brydsons examination of the vehicle was superficial and
    conducted two weeks after the attack took place, it was likely that she missed
    blood that would have been detected by more sophisticated testing or an earlier
    examination.

[40]

No
    such challenge was raised at the criminal trial. In short, there was no
    opportunity for meaningful contemporaneous cross-examination. As the authors
    of the
Law of Evidence in Canada
(Toronto: LexisNexis, 2014) point out
    at p. 363:

It is imperative that the opponent had an opportunity to
    cross-examine the declarant at the previous proceeding. Consequently, the
    previous testimony of a witness in a criminal case is generally not admissible
    in a subsequent civil action, even though it involves the same fact situation.
    Parties and issues in criminal and civil cases are different, and,
    consequently, a cross-examination for the purposes of civil action could be
    totally different from the cross-examination conducted in the criminal
    proceeding, which would focus upon different issues. To permit such evidence to
    be admitted would effectively deprive the opponent of his or her right to test
    its accuracy.

[41]

The
    wife was not a party at the criminal trial and her interests were not
    represented there. The husbands cross-examination is no substitute for hers:
R.
    v. James
, 2011 ONCA 839, 283 C.C.C. (3d) 212.

[42]

In
    my view the trial judge erred in failing to conduct any analysis of the
    reliability of Ms. Brydsons evidence. It is clear from reading her
    evidence that she conducted only a visual examination of the car. She performed
    the Kastle-Meyer test only in the areas where she observed blood. She was
    unable to say how many times the vehicle may have been opened and closed or how
    many people had access to it before her arrival.

[43]

The
    evidence is in my view inadmissible for want of threshold reliability and the
    trial judge erred in law in admitting the transcript of Ms. Brydsons evidence.

[44]

I
    also note that in admitting Ms. Brydsons evidence, the trial judge appears to
    have relied to some extent on the fact that this evidence was provided to both
    Dr. Jaffe (the s. 30
CLRA
assessor) and Dr. Pickup (a forensic
    pathologist) to assist them in preparing their own reports. The trial judge
    commented as follows in his oral ruling on the admissibility of this evidence:

as I say it is not key to my decision but to some extent
    contradictory to allow it in for one purpose and not the other.

[45]

Clearly,
    the fact that a transcript of this evidence was provided to expert witnesses to
    assist in preparing their reports does not itself render the evidence admissible.
    It was wrong for the trial judge to suggest otherwise.

[46]

The
    husband also suggests that since the report of Dr. Karma was admitted under the
    principled exception to the hearsay rule, so too should Brydsons evidence be
    admitted. Dr. Karma was the treating physician in Jamaica who attended to the wife
    when she was brought to hospital.

[47]

First,
    even if Dr. Karmas report was improperly admitted at the trial, this does not
    provide a basis upon which to admit Ms. Brydsons evidence. Trial fairness is
    achieved by excluding inadmissible evidence, not by allowing both sides to lead
    inadmissible evidence.

[48]

Second,
    the report of Dr. Karma is uncontroversial. There was no dispute that the wife
    sustained a ten centimeter cut on the front of her neck. The only dispute is
    how the cut was caused.

[49]

Third,
    our courts routinely admit medical reports in civil trials when the information
    they contain is not controversial.

[50]

Finally,
    since Ive already found that Ms. Brydsons evidence was inadmissible hearsay,
    it is not necessary to consider whether it was admissible expert evidence. I
    will note, however, that prior to admission, the evidence should have been
    scrutinized under the four
Mohan
factors of relevance, necessity,
    absence of an exclusionary rule, and a properly qualified expert:
R. v.
    Mohan
, [1994] 2 S.C.R. 9. The Supreme Court has also recently articulated
    in
White Burgess Langille Inman v. Abbott and Haliburton Co
. 2015 SCC
    23, 470 N.R. 324 that the courts gatekeeping function is not exhausted by the
    four
Mohan
factors and that probative value must still be balanced
    against prejudicial effect.

(b)

Consequences of Relying on Inadmissible Evidence

[51]

Ms.
    Brydsons evidence was crucial to the trial judges assessment of the wifes
    credibility. Focusing on the fact that no blood had been observed on the rear
    door locks, he concluded at paras. 155, 181 and 189 that the wifes version of
    the altercation was untruthful:

What is obviously crucial for this trial is that Ms. Brydson
    found no evidence at all of any blood in any of the locations listed above in
    paragraph [154]. Because of the importance of this evidence, counsel for the
    applicant asked for a short adjournment so that she could consult with and
    possibly obtain her own blood expert.



Perhaps the strongest evidence in favour of a finding that the
    respondents version of events on the Flamingo Road is the truthful one, comes
    from the evidence of Ms. Bryson [
sic
].



The expert evidence of Ms. Brydson fundamentally contradicts
    the applicants version of events.

[52]

The
    trial judges reliance on this evidence permeated his entire credibility
    analysis. He clearly placed great weight on this inadmissible evidence in concluding
    that he could not find that the husband had attacked the wife and that [i]f
    anything the evidence tilts in the opposite direction (para.187). His
    conclusion rested on this substantial error and resulted in a miscarriage of
    justice. On this basis alone, his decision must be set aside.

(2)

Inappropriate Rejection of Blackmores Evidence

[53]

In
    view of my conclusion that the Brydson evidence was inadmissible, it is not
    strictly necessary to deal with this argument. I will, however address it for the
    sake of completeness.

[54]

Valerie
    Blackmore is a forensic biologist retained by the wife to respond to Ms.
    Brydsons evidence.

[55]

She
    detailed the kinds of testing she would have done if confronted by the facts of
    this case, and emphasized that a systematic approach is necessary in searching
    for the presence of blood.

[56]

She
    described the difficulties sometimes encountered in detecting the presence of
    blood and how enhanced lighting such as fibre optic lighting and magnification
    is sometimes required to detect the presence of blood not otherwise visible to
    the eye.

[57]

She
    discussed the importance of having a hypothesis that would focus a search that could
    otherwise take days or weeks.

[58]

In
    addition to a visual observation and the use of enhanced lighting,
    Ms. Blackmore described in her examination-in-chief the use of general rub
    tests for blood in areas of interest to rule out that there was in fact no
    detectible blood in those areas.

[59]

Ms.
    Blackmore addressed the many variables at play when one is asked to determine
    whether or not a hand with blood on it would leave blood behind on a touched
    object. She spoke to the importance of the chain of custody and the likelihood
    of degradation where items are not properly stored. Ms. Brydsons examination
    took place January 5, approximately two weeks after the event in question.
    There was no evidence on how the vehicle had been stored; for example, whether
    it was left outside in the bright Jamaican sun for long periods of time.

[60]

In
    contrast to Ms. Blackmores approach, it is apparent from Ms. Brydsons
    evidence that she conducted only a visual examination of the car.

[61]

When
    asked what she found when she examined the car, Ms. Brydson described four
    types of what we call bloodstains or patterns. She then described clots,
    brown stains, brown drops, and brown smudges  all visual observations
    and where she observed them. The only testing she conducted was in the areas
    where she had observed staining.

[62]

Ms.
    Brydson described using the Kastle-Meyer test, which involves touching specially-treated
    blotting paper to an area; the paper will turn pink if blood is present. It is
    the only method of testing she describes using in her examination of the
    vehicle. She makes no mention of enhanced lighting or magnification devices.
    She described the upholstery of the car as being black and gray patterned
    cloth. She said she examined the car thoroughly, everywhere and found no
    smudge, no stain, no droplet on any control on the left or buttons on the left
    rear passenger door, the right rear door, or backseat. She examined the
    vehicle almost two weeks after the altercation, and could not say who might
    have had access to the vehicle before she examined it.

[63]

In
    his reasons for decision the trial judge considered and dismissed Ms. Blackmores
    evidence at paras. 156 and 182:

In my view, because the evidence of Ms. Blackman [
sic
]
    was essentially all conjectural, it ultimately did not assist me in any manner
    with respect to deciding the issue of whether the respondent had in fact tried
    to kill the applicant on December 23, 2010. Ms. Blackman [
sic
] might
    have done the testing for blood differently than Ms. Brydson did. Factors that
    Ms. Blackman [
sic
] could not say applied back in January 2011 could
    have affected the results of the tests in the backseat area. Ms. Blackman did
    not know whether steps were taken to ensure chain of custody or continuity. Ms.
    Blackman did not know how the samples from the front seat were taken etc.

The evidence of Ms. Blackman, based on so many unknowns (to
    her) does not significantly undermine the weight of Ms. Brydsons evidence.

[64]

The
    trial judge does not deal at all with the significant reliability concerns that
    Ms. Blackmores evidence raises in relation to Ms. Brydsons. He simply
    dismisses her evidence as conjectural.

[65]

In
    my view, Ms. Blackmores evidence was not conjectural. It is true that
    she did not know what methodology Ms. Brydson used, but she did not speculate
    on that. She merely testified about what a thorough search for the presence of
    blood should look like. She had the necessary expertise and experience to give
    that entirely fact-based evidence.

[66]

Because
    of the importance of Ms. Brydsons evidence to the trial judges ultimate
    assessment of the wifes credibility, the trial judge was obliged to consider the
    effect of Ms. Blackmores evidence on the thoroughness of Ms. Brydsons search.

[67]

At
    the very least, Ms. Blackmores evidence shakes ones confidence in Ms. Brydsons
    conclusion that there was no blood in the backseat area. Yet the trial judge
    simply rejects Ms. Blackmores evidence as conjectural, having already concluded
    (at para. 181) that Ms. Brydsons evidence is the best evidence in the husbands
    favour.

(3)

Reasonable Apprehension of Bias

(a)

The Test

[68]

The
    test for bias is well-settled: would a reasonable and informed person viewing
    the matter realistically and practically and having thought it through,
    conclude that the judge, consciously or unconsciously would not decide fairly? The
    test is easily stated. The difficulty arises in its application.

[69]

I
    note that in custody and access cases in which the best interests of the
    children are paramount, the fairness owed by the judge is primarily to the
    child rather than to the parties. That is, since the courts primary duty is to
    inquire into the childrens best interests, impartiality to the parents is
    subservient to that goal. At the same time, where, as here, the court has
    decided to resolve a factual dispute between the parents in order to determine
    best interests, fairness to the child and to each party presenting evidence
    will generally overlap.

[70]

The
    Supreme Court of Canada recently noted at para. 22 in
Yukon Francophone
    School Board
2015 SCC 25:

The objective of the test is to ensure not only the reality,
    but the
appearance
of a fair adjudicative process.

[71]

The
    threshold for finding a reasonable apprehension of bias is extremely high: See
Lloyd
    v. Bu
sh, 2012 ONCA 349 at para. 23. There is a strong presumption in
    favour of the impartiality of the trier of fact and the question of reasonable
    apprehension requires a highly fact-specific inquiry.

[72]

Again
    in
Lloyd
as this court noted at para. 27:

In
Chippewas
, the court warned at para. 243 that
    [i]solated expressions of impatience or annoyance by a judge as a result of
    frustrations  do not of themselves create unfairness.

[73]

The
    wife argues that reasonable apprehension of the trial judges bias is
    demonstrated in a number of ways including that:

1.

he rejected independent objective evidence that supported her version of
    the incident;

2.

he refused to meaningfully engage in the overwhelming credibility
    problems that the husbands evidence raised;

3.

the trial judge rejected the wifes evidence on an improper basis and his
    own theory;

4.

he inappropriately descended into the arena through intervention  not
    to clarify but to advance his own theory and undermine the wife;

5.

he treated counsel inappropriately throughout the trial;

[74]

I
    would begin with the observation that this was a long and difficult trial. This
    was a particularly high conflict custody battle where emotions ran high and the
    consequences for the parties were enormous. There is no question these are
    difficult trials not only for the parties but also for trial judges who must
    preside over them. The difficulties are enhanced where one party is, as here, self-represented.

(b)

Rejection of Independent Evidence

[75]

The
    wife submits that the trial judges bias is demonstrated by the manner in which
    he treated independent evidence that did not support his own theory about the
    incident.

june warren

[76]

June
    Warren was a by-stander, standing at the side of the road when the wife slipped
    out of the moving car with her throat slit.

[77]

She
    observed the vehicle come from the old road onto the highway without stopping,
    observed the passenger door flung open, and observed two feet come out that
    door. She clearly, at that point, heard the voice of a woman begging for help. The
    car continued to drive. After the vehicle had entered the highway and went
    down the road she saw something resembling a person, a human, that left the
    vehicle. She was asked And what was the vehicle doing when you observed a
    person leaving the vehicle? Her response was Driving, driving very fast. She
    observed the vehicle continue on down the highway toward Falmouth. She saw the
    same vehicle return about ten minutes later.

[78]

On
    cross-examination Ms. Warren was referred to the statement she had given to
    police on January 21, 2011 where at p. 3 it is recorded:

Before I saw and spoke to Huntley I saw the said Suzuki jeep
    from a distance after passing me slow down and I saw someone exited the said
    vehicle. I could not make out whether the person was push or jump.

[79]

She
    was asked if that sounded correct and responded that it did not:

No. I told you that when the person exit  exit the vehicle, it
    was not going at such a fast pace as when you came out of Retreat Heights. That
    is exactly what I told you just minutes ago.

[80]

Some
    confusion arose and she seemed to be under the impression that the husband was
    suggesting to her that in her statement to police, she had indicated the
    vehicle had come to a stop, or almost a stop, when the person exited the
    vehicle. She quite adamantly stated that the vehicle did not come to halt 
    it slowed down a little but did not come to a halt.

[81]

Her
    evidence at the husbands criminal trial was also put to her in
    cross-examination and it was suggested to her that she saw the car slow down.
    Again she was adamant that she did
not
say the vehicle came actually
    to a halt.

[82]

At
    paragraph 128, the trial judge confused the evidence. The witness never said
    the car had halted. She had apparently said on earlier occasions that the car
    had almost come to a stop. The trial judge focused on this discrepancy to
    reject her evidence for inconsistency and assumed her earlier evidence to be
    more accurate. The trial judge nowhere dealt with the importance of the overall
    corroborative nature of Ms. Warrens evidence to the evidence of the wife 
    hearing her shouts for help and seeing her feet protruding from the passenger
    door as the vehicle drove by  the vehicle continuing on after the passenger exited
    the vehicle and not returning for ten minutes.

[83]

The
    husband did not cross-examine Ms. Warren on any of this evidence. He instead
    focused only on the issue of whether or not the car slowed when the wife left
    it.

[84]

There
    was no considered analysis of this important evidence which came from a
    completely independent witness and corroborated the wifes version of the
    event.

[85]

Instead
    the trial judge rejects the entirety of this evidence because of a minor
    inconsistency: an inconsistency about which he was also mistaken in the detail.

Huntley russell

[86]

Mr.
    Russell was driving on the highway in the opposite direction to the husband. As
    he approached the husbands car, he saw it swerving from left to right and back
    again. He pulled over to the shoulder. As he got close to the car he noticed
    someone inside stretching over to the driver  a white person leaning over
    toward the drivers side of the vehicle. After pulling to the side, he
    proceeded a bit further up the road where he was flagged down by two women.

[87]

The
    women told him that somebody had just passed them in a car crying out for help.
    They thought she might be in some difficulty. Mr. Russell then made a U‑turn
    to follow the car and on his way observed a woman on the side of the road on
    her knees. He stopped his car, the woman was holding her throat with one of her
    arms and stretching out the other arm. She was saying help me, help me please.
    Its my husband who did this to me. Mr. Russell helped the wife into another
    car that had driven up and asked the driver to take her while Mr. Russell went to
    see if I can give chase to the other vehicle that I noticed when it went by. He
    saw the slash on the womans throat and blood coming between the fingers that were
    on her throat.

[88]

The
    trial judge recited Mr. Russells evidence at para. 125 of his reasons. That is
    all he does. There is no analysis whatsoever. The trial judge simply remarks
    that no one ever asked Mr. Russell if he did give chase, and if so, what he
    observed. He appears to have entirely missed the significance of this
    independent evidence which on its face corroborates the wifes version of
    events. It was important evidence that the trial judge fails to advert to as supporting
    the wifes account. Mr. Russells observations were within minutes of the
    attack. It is highly relevant that at that time, while she was bleeding profusely
    and feared for her life, she did not say that she and her husband had fought
    but rather said that her husband did this to me. Despite having identified her
    husband as her assailant at that time, the trial judge didnt deal with this
    evidence. While not determinative, Mr. Russells observations are, as the wife
    submits, more consistent with her account than with the husbands.

Dr. Pickup

[89]

Dr.
    Pickup was the forensic pathologist called by the wife at trial. He offered
    opinion evidence on the way in which the wifes injuries might have been
    sustained.

[90]

He
    was asked by the husband in cross-examination:

What surface of the hand would the victim most likely receive a
    cut to if the victim was grabbing their throat?

A.      If they grabbed their throat and left their hand in
    that position during the second attack, the injury would be  and the knife
    came into contact with the hand, the injury would be on the back of the hand

Q.      Not the palmar side?

A.      Not the palmar side.

and in re-examination on this point:

Q.      If the same scenario happens and the hands are not kept
    on the neck for every moment, what is your answer?

A.      Then all bets are off. Its possible any part of the
    hand could get injured.

Q.      And what if you have most of the hand on the neck but
    the thumb raised or free?

A.  Then its possible to cut any part of the thumb.

[91]

Dr.
    Pickups evidence was that he could not exclude the wifes version of how she
    came to be injured nor could he exclude the possibility that the wife was
    acting as the perpetrator and was accidentally cut. He was asked to compare the
    likelihood of the two possible scenarios. He said:

Well injuries sustained to the neck during the course of
    disarming somebody would be unusual or infrequent. So while its possible, and
    many things are possible when a knife is involved in some sort of interaction
    between two individuals, I would think it unlikely for somebody to receive an
    injury to their neck during a disarming process.

THE COURT:        But not excluding.

DR. PICKUP:         Unlikely, but not excluded, yes.

[92]

The
    trial judge dealt with Dr. Pickups evidence at paras. 170 and 183 of his
    reasons as follows:

That takes me to the applicants thumb. It would have been
    impossible for the inner portion of the applicants thumb to have been cut if
    she were holding her throat with her left hand when the respondent allegedly
    drew the knife across her throat the second time. That much is obvious. Dr.
    Pickup confirmed that. The applicant obviously understood that. It is fair to
    say that the appellants evidence on this point was rather all over the map in
    this trial. My interpretation of what the applicant said when she testified at
    the criminal trial, as I set out in paragraph [72] above, was that her left
    hand was on her throat when her thumb got cut.

[93]

This
    was not Dr. Pickups evidence. What he said was that if the hand did not remain
    entirely over the neck for every moment, or if the thumb were raised or free,
    then it was entirely possible for the palmar surface of the thumb to be cut. Earlier
    in his evidence, he described the wound to the wifes thumb as a defensive
    type injury in the context of a sharp force injury to the neck.

[94]

The
    wife had testified that her thumb was cut
en route
to her neck: as I
    was grabbing my neck the knife got my thumb. The injury could have occurred as
    she described it and Dr. Pickups evidence supported this. Even if her hand was
    on her throat, as the trial judge found, it does not rule out the fact that her
    thumb could have been cut if it were raised or free. The trial judge didnt
    deal with this evidence. Instead he ignored the forensic pathologists
    description of the wound on her thumb as defensive. And perhaps most
    alarmingly, he completely ignored this experts evidence that in comparing each
    partys account, the neck injury rendered the husbands account unusual,
    infrequent and unlikely. This was extremely important evidence that the
    trial judge completely dismissed at para.183:

What of Dr. Pickup? One needs to remember that Dr. Pickup was
    called as an expert by the applicant. It was his opinion as set out in his
    report that it was not possible for him to determine who caused the applicants
    wounds, or the circumstances around which the applicant sustained these wounds.
    He was unable to exclude the applicants explanation for how the injuries on
    her neck and thumb were sustained. At best, this is a rather lukewarm
    endorsement of the applicants version of events.

[95]

Again,
    the trial judge is dismissive of evidence which supports the wifes version of
    events. And again he focuses on a minor inconsistency between her evidence at
    the criminal trial where she said: I grabbed my throat with my left hand and
    he came at me again  and because my hand was over my throat, he got my thumb,
    my left thumb.

[96]

And
    at this trial where she said as I was grabbing my neck the knife got my
    thumb. The trial judge described the wifes evidence on this point as all
    over the map at the trial before him. The evidence simply does not bear this
    out.

(c)

Comparative Treatment of the Wife and Husbands Evidence

[97]

The
    trial judges treatment of the wifes evidence is particularly troubling when
    contrasted with his generosity in treating inconsistencies in the husbands
    evidence.

[98]

The
    husband told two very different versions of what happened in Jamaica on that day.

[99]

First,
    he told police they had been robbed by a Jamaican man who cut his wifes
    throat. He signed a written statement to that effect and maintained that
    version of events, even though he was detained in custody in Jamaica until his
    criminal trial proceeded almost a year later.

[100]

It was at his
    criminal trial that a different version of the events of December 23, 2010 was
    advanced. While the husband did not testify at his criminal trial, he did give
    an unsworn statement from the dock, as is permitted by the law in Jamaica. He
    said he had lied to the police and that his statement was fabricated to protect
    his wife who had actually attacked him. He said she was injured when he tried
    to protect himself and take the knife away from her. He said he feared for his
    life.

[101]

While the trial
    judge imposes a very exacting standard on the wifes evidence  calling
    evidence that is in fact quite consistent all over the map, the jarring
    inconsistencies in the husbands version get a pass. The husband drove for 17
    kilometers without stopping for help while his wife bled in the car beside him.
    He left her at the side of the road in that condition, to, as he says, get help,
    despite having a cell phone on him which he at no point used. And he lied to the
    police and then changed his story. These facts are all dismissed by the trial
    judge at para. 173: Who can say what anyone in the circumstances of that time
    might or should do?

[102]

I do not suggest
    that there were no inconsistencies in the wifes evidence. There were. But while
    these were all emphasized, the significant and material inconsistencies in the husbands
    evidence were ignored.

[103]

While he relied
    on Ms. Brydsons evidence that she saw no blood on the buttons in the back
    seat area to undermine the wifes version of the incident, the trial judge
    ignored Ms. Brydsons Certificate wherein she stated her opinion from
    examination and analysis performed the following inferences were drawn: 1. A
    female individual sustained injury in the front passenger seat. Her conclusion
    clearly undermined the husbands version of the attack, yet the trial judge did
    not deal with this evidence.

[104]

Further, at
    para. 181 of his reasons the trial judge made two errors. First, he said [a]s
    the applicant herself admitted, had she reached into the back seat area with
    her left hand, it would have been probable that some of her blood would have
    gone somewhere into the back seat area. That was not the wifes evidence. When
    asked in cross-examination whether it was probable that there would be blood
    she said: I would say, I mean I wouldnt  Im not an expert. Second, the
    trial judge completed his thought with Ms. Brydson effectively agreed with
    that, as did Dr. Pickup. Dr. Pickup never in his evidence talked about blood
    in the backseat area.

[105]

In my view, the
    trial judges comparative credibility analysis is troubling. He brought the
    wife to task for minor inconsistences while excusing the husband in the face of
    glaring contradictions. This suggests an uneven treatment of the evidence and
    amounts to an error of law.

(d)

Entering the Fray

[106]

The wife also submits
    that the trial judge stepped out of his role as independent arbiter and became
    an advocate for the husband.

[107]

This is best
    demonstrated in his examination of certain witnesses. It is accepted that a
    judge is permitted to ask questions in order to clarify evidence that has been
    given by a witness or witnesses. The appellant submitted that the trial judge
    here went well beyond those well-established bounds. In questioning Dr. Pickup
    and Dr. Jaffe, the trial judge appeared to make negative findings of
    credibility against the wife, and put those findings to the witnesses by way of
    cross-examination. In the course of questioning these witnesses, he also
    appeared to be filling holes in the husbands testimony.

[108]

It is crucial
    for trial judges to maintain their independence and impartiality throughout;
    the process depends upon it. When one party is self-represented, balancing
    trial efficiency and effectiveness with the appearance of independence and
    impartiality can be truly challenging.

[109]

In this case,
    the trial judges primary obligation was to determine the childrens best
    interests. In this context, I am particularly reluctant to criticize him for
    questioning witnesses in an attempt to get to the truth.

[110]

What was
    inappropriate, however, was for the trial judge to appear to already favour the
    husbands version of events over the wifes in the course of questioning these
    witnesses. However, since this point has already been sufficiently canvassed
    above, I see no need to further address this ground of appeal.

(e)

Treatment of Counsel and Client

[111]

I repeat that
    this was not an easy trial. A review of the transcript reveals that there was a
    persistent tension between the trial judge and senior counsel representing the wife.
    The following is a sampling of the comments that give rise to this ground of
    appeal:

Q.      And before surgery when you were lying on the gurney,
    what did you hear in the hall, if anything?

A.      I heard Pauls voice.

THE COURT:        You just cant stop yourself.

Ms. McCarthy:       Well, Im trying to Your Honour.



Q.      All right. Dr. Jaffes report was received in January
    of 2013. What was your understanding of arrangements that were put in place
    before the report was released?

THE COURT:        Arrangements regarding what?

Ms. McCarthy:       I dont want to lead, Your Honour.

THE COURT:        Ms. McCarthy, that was nothing other than a
    bit of a smartass remark from you, which I did not ...

Ms. McCarthy:       No, Your Honour.

THE COURT:        Please do not interrupt  which I did not
    appreciate. You may have rehearsed extensively with this client, which is fine
    - maybe thats one of the reasons for the difficulties that you and I seem to
    have with what I view as your leading, but that question was so general that I
    have no idea what you meant. What arrangements were made? Maybe your client
    knows what you meant, but I certainly didnt. And when asking you to clarify
    that, your remark was inappropriate and unjustified. And perhaps well take a
    brief recess to let matters calm down.



Ms. McCarthy:       I would say one other  can I make one
    other comment, Your Honour?

THE COURT:        Can I possibly stop you?



Q.      But Dr. Bloom, youre the one coming here presenting
    evidence

THE COURT:        Youre the one that gave him that report to
    comment on.

Ms. McCarthy:       Yes, Your Honour.

THE COURT:        So for you to chastise him, as you are now
    apparently doing, I think is quite inappropriate and hes given the best answer
    he can.

Ms. McCarthy:       Your Honour, I apologize if you believe Im
    chastising.

THE COURT:        Well, you should listen to yourself
    sometimes, counsel.



THE COURT:        Youre talking about where theres strictly
    evidentiary issues as opposed to what argument you might make out there about
    things making sense.

A.

Okay. Well it was put to me that the pension letter, I  I did remove
    him off the pension

THE COURT:        Yes.

A.

beneficiary because I was...

THE COURT:        Planning on killing her blah, blah, blah.



THE COURT:        And please, please thats at least the third
    time today that youve given me a sarcastic response...

Ms. McCarthy:       Well, I wasnt

THE COURT:         to an interjection by me and perhaps youre
    getting tired, perhaps Im getting tired but I dont appreciate it when you

Ms. McCarthy:       I was not being sarcastic Your Honour. Im
    sorry

THE COURT:        I can tell you thats my perception and I
    think its a pretty valid one. And perhaps well have a recess and I really,
    really dont understand the relevance of that question and many others that
    have been asked this afternoon.



Q.      You never intended to go to the airport that day, sir.

A.      Incorrect.

Q.      You wouldnt put a knife, a Swiss army knife, in your
    pocket of your shorts on the way to the airport.

A.      I had a Swiss army knife on me every time I went on an
    excursion. Its just something that I have. Its useful and I agree that would
    have  that was a mistake, obviously, because I would have  it would have been
    confiscated at the airport.

Q.      Right.

A.      I should have packed it in my bag. Yes.

Q.      You should have. Thats right. And the morning

THE COURT:        Should I tell you how many Swiss army knives
    Ive lost at airports around the world because I forgot too, as I recall last
    count. So people do stupid things.



[112]

The blah blah
    blah remark was unfortunate used as and where it was. In hindsight, it was
    insensitive to the wife in particular, and may have appeared as though the
    trial judge did not take her allegation seriously. However, a further review of
    the transcript shows the judge used this expression elsewhere, for example very
    early on during the examination of the wife in-chief, and appears to have used
    it in the sense of 
et cetera, et cetera
 

THE COURT:        May I remind you again, that  of your
    tendency to slip into leading questions. What efforts did you make to blah,
    blah, blah is a leading question

[113]

His choice of
    language was unfortunate but would not on its own raise a reasonable
    apprehension of bias.

[114]

The only other
    matter I would comment on was the interruption of counsels cross-examination
    of the husband with an anecdote about his own loss of Swiss army knives. It was
    inappropriate coming where and when it did; it interrupted the flow of
    cross-examination and interfered with counsels ability to present her clients
    case. It also gave the appearance that he was trying to help the husband out of
    a difficult spot.

[115]

At the same
    time, none of these comments, either or alone or viewed together, would
    themselves have risen to the level of reasonable apprehension of bias.

(f)

Interim Rulings

August 6, 2014

[116]

The wife submits
    that the trial judges interim access rulings demonstrate bias in favour of the
    husband.

[117]

After the trial
    judge had determined that the transcript of the evidence of Ms. Brydson would
    be admitted into evidence, counsel for the wife sought a brief adjournment to
    consult a blood expert. The wifes position is stated in para. 58 of her
    factum:

Following the admission of the Brydson transcript, Cathy sought
    an adjournment to call evidence in reply. The next day, the trial judge stated
    that he would require, as a condition of the adjournment, the parties to
    argue about changes to Pauls interim access pending the continuation of the
    trial, or the final judgment. He stated that will happen no matter what this
    week. The trial judge made this decision prior to either party being permitted
    to make submissions and without Paul even asking for this relief.

[118]

The husbands
    position on this issue is set out at para. 41 of his factum:

Justice Timms was asked by Martin (on more than one occasion)
    to make an order with respect to access pending the release of his final
    reasons. Clayson in turn sought no change to access pending the final decision.
    In response to Martins motion, Ms. McCarthy provided Justice Timms with a
    factum and two Briefs of Authorities on the issue of interim access. Trial
    ended on July 4, 2014. On August 6, 2014 Justice Timms released his interim
    decision with respect to access. Justice Timms had heard all of the evidence by
    the date on which his access decision was made.

[119]

In paragraph 3
    of his reasons in the August 6, 2014 interim access decision, the trial judge
    noted:

When he made his opening remarks, the respondent submitted that
    since the parties would have to wait so long for my final reasons, he would be
    asking the court to make a temporary order granting him access to the children
     outside of a supervised access centre (SAC) pending my final judgment.

[120]

While the husband
    may not have served formal notice of his intention to seek an interim access order,
    he had stated his intention to do so early on in the proceedings. By the time
    the order was issued in August, 2014 the trial judge had heard all the evidence
    and had the benefit of the submissions of counsel.

[121]

While the wife
    may disagree with the decision for any number of reasons, in my view, the trial
    judges decision to issue an interim ruling at this time does not demonstrate
    bias as that term is understood in the authorities. The decision goes against
    the wife, in the sense that the trial judge did not accept her submissions. But
    clearly that alone does not evidence bias.

December 23, 2014

[122]

On December 23,
    2014 the trial judge released a further endorsement relating to interim access.
    This ruling is troubling. It reads in its entirety:

Christmas is hard upon us. Therefore, I have determined that an
    order is required to deal with Christmas access by the respondent this year.
    There have been problems in the past. Unless the parties have already come to a
    mutually satisfactory arrangement, which has been reduced to writing, my order
    is that the children shall be in the care of the respondent from December 26,
    2014 at noon, until December 31, 2014 at noon. That access need not be
    supervised by anyone.

Full reasons on this, and all other issues, to follow shortly.

[123]

Neither party
    sought this order. They were given no warning from the trial judge that it was
    coming. And most importantly, they were given no opportunity to make any
    submissions in relation to it. After much scrambling, counsel was able to
    manage to bring a motion before the Divisional Court the next day, which was
    Christmas eve, and have the order set aside.

[124]

The husband had,
    until the time of the interim order of August 6, 2014, only had two hours of
    supervised weekly access at a Supervised Access Centre pursuant to the Order of
    Lack J. dated December 15, 2011. The interim order in August 2014 provided for
    access in the community twice weekly on Saturdays from 10:00 a.m. to 7:30 p.m.
    and on Wednesdays from 1 p.m. to 7:30 p.m. But supervision continued, with one
    of the husbands brothers providing the required supervision.

[125]

This would have
    been the first time in four years that the husband had unsupervised access and
    overnights with the children

[126]

The order issued
    before the trial judge released his final reasons and before he had made his
    determination about what happened in Jamaica.

[127]

I think it
    unnecessary to say more about that order. It was set aside: in my view,
    properly so.

(4)

Failure To Consider Best Interests of the Children

[128]

This was, and
    still is, a custody and access case. For all the errors discussed above,
    perhaps the trial judges most significant error was failing to keep the
    inquirys focus on the best interests of the children. The reasons treating the
    event in Jamaica total 43 pages and 189 paragraphs. The reasons treating all
    other aspects of the best interests of the children total about two and a half
    pages and about nine paragraphs, exclusive of the actual orders made.

[129]

There is no
    doubt that most of the trial time in this case was consumed by the evidence
    relating to that one fateful day in Jamaica. And as Dr. Jaffe put it at page 2
    of his report:

The alleged assault in Jamaica is the critical issue in a
    custody decision, with the significance of serious domestic violence as one of
    the central factors in determining the childrens best interests.



The ultimate family court finding on what actually happened in
    Jamaica will likely dictate which parenting plan and custody arrangement would
    be most appropriate to consider.

[130]

In his reasons,
    the trial judge concluded at para. 187:

However, I cannot find, even on a balance of probabilities,
    that the respondent attacked the applicant on Flamingo Beach Road on December
    23, 2010 as described by her. If anything, the evidence tilts in the opposite
    direction. In the final analysis I am not prepared to make a finding either
    way.

[131]

The wife argues
    that what happened that day in Jamaica is crucially intertwined with the issues
    of custody and access. Her first point is that if it is determined that the husband
    tried to murder her, his access should be terminated. He has lost the privilege
    of being a parent. I would note in response to this argument that even Dr.
    Jaffe, who assumed for the purpose of his report that the husband had attacked
    the wife as she described, did not recommend termination of access.

[132]

The wife submits
    that if the trial judge erred, his custody and access assessment cannot stand.

[133]

She further
    submits that purely on an analysis of what he did order, he erred both in fact
    and law and disregarded his duty under s. 24 of the
CLRA
.

[134]

The wife submits
    that even if one accepts that the trial judge could not decide between the
    competing versions of what occurred in Jamaica, his custody and access order
    makes no sense as it puts the children and their mother at ongoing risk. The
    trial judge failed to consider s. 24(4) of the
CLRA
as he is obliged
    to do.

[135]

In his interim
    order of August 6, 2014, the trial judge continued supervision but increased
    the husbands access.

[136]

Since December,
    2011 the husband had only seen his children for two hours weekly at the supervised
    access centre (SAC) with some additional time at Christmas. The interim order
    increased his time with the children to twice weekly but maintained supervision.

[137]

The changes that
    resulted from the December 30, 2014 reasons are dramatic. The access changes
    from twice a week during the day with supervision, always returning to the wifes
    home overnight, to immediate every-other-weekend access, from Friday after
    school to Monday morning, without any requirement for supervision. Within seven
    months the children are to rotate between their parents places of residence on
    a week-about basis.

[138]

The children are
    now 10 and 7 years of age. They were 5 and 2 when their parents abruptly
    separated in December 2010. For a year thereafter, they did not see their
    father. After December 15, 2011, they saw their father for two hours each week
    at the SAC Centre.

[139]

Dr. Jaffes
    report is dated in January 22, 2013 and is based on his information up to the
    end of December 2012.

[140]

Nowhere in his
    reasons does the trial judge address the various factors as required by s.
    24(2) of the
CLRA
. There is no reference to the wifes or teachers evidence
    about how the children were coping. There is also no discussion of how the
    children might be expected to cope with the dramatic changes to their everyday
    lives that the trial judge was ordering.

[141]

Importantly,
    there is also no consideration of the issue of domestic violence  an issue
    that arises on either partys account of the events in Jamaica  or how, if at
    all, it should affect the proposed arrangements. The reasons are silent in this
    respect.

V.

CONCLUSION AND REMEDY

[142]

I have found
    above that the trial judge committed several reversible errors. He relied on
    inadmissible hearsay evidence that permeated his entire credibility analysis. I
    have also found that he treated the evidence of the parties unevenly in a way
    that gave rise to a reasonable apprehension of bias and amounted to an error in
    law. Lastly, the trial judges failure to consider the full range of factors
    affecting the best interests of the children also constituted reversible error.
    Given these findings, the decision of the trial judge must be set aside.

[143]

Under these
    circumstances, a new trial on all the issues would ordinarily be ordered. However,
    while the issue of what happened in Jamaica consumed most of the trial time,
    this is primarily a custody and access case. And although the Jamaican incident
    was critical to the appellants damages claim, for the purposes of determining
    custody and access, the childrens best interests govern. Section 16(8) of the
Divorce
    Act
, R.S.C. 1985, c.3 (2
nd
Supp.), as amended dictates not only
    that best interests be
primary
in making custody-related orders, but
    that best interests be the
only
consideration:

In making an order under this section [Custody Orders], the
    court shall take into consideration
only the best interests of the child
of
    the marriage as determined by reference to the conditions, means, needs and
    other circumstances of the child. [Emphasis Added.]

[144]

Section 24(4)(a)
    of the
CLRA
does direct the court, in assessing a persons ability to
    act as a parent, to consider whether the person has at any time committed
    violence against his or her spouse. This, however, is clearly not the sole
    determinant of best interests.

[145]

In his report,
    Dr. Jaffe assumes that the wifes version of the Jamaican event is correct, but
    still recommends access for the husband with community supervision, subject to
    review. He also notes at p.19 of his report that there is no obvious basis to
    suggest that [the husband] is a danger to the children based on psychological
    testing, interviews and information from collateral sources. The husband had
    obtained a psychiatric and psychological assessment when he returned from
    Jamaica in order to assure his employer that he was fit to return to work as an
    elementary teacher and presented no concerns as to any potential violence. At
    p. 19, Dr. Jaffes report summarizes the findings of Dr. Bloom and Dr. Mamak:

These reports indicate no mental health problems or risk of
    violence although there is a high level of denial of any shortcomings similar
    to our assessment. Even prior to Jamaica, there was no way to predict that [the
    husband] would ever act in a violent matter. In hindsight he did exhibit
    certain dynamic risk factors, such as jealousy and distress over the
    separation, however he did not have a history of aggression, violence,
    antisocial behaviour or mental illness. There is no pattern of abuse. Currently
    he is entrusted with a Grade 7 elementary class and his principal has so much
    confidence in him that he doesnt hesitate to leave him in charge of over 750
    pupils when no administrators can be in the building. He is reported to have
    the confidence of staff and parents  even in the face of negative publicity in
    the community and suspicion from the Jamaican incident.

[146]

Dr. Jaffes report concludes as follows at p.19: One is
    left to consider [the husbands] behaviour in Jamaica as
an isolated
    incident that is totally out of character and unlikely to happen again

    (emphasis added). This is uncontradicted expert evidence supported by the
    assessments of Dr. Bloom and Dr. Mamak.

[147]

Dr. Jaffe also
    expresses serious concerns about the effect of a trial about the Jamaican event
    on the children.

[148]

We are now faced
    with the possibility of what is effectively a
third
trial about this
    event. The first was the criminal trial in Jamaica, the second the 20-day trial
    that is the subject of this appeal. Both trials reached indeterminate
    conclusions about that fateful day: the husband was found not guilty at the
    Jamaican trial (which amounts to neither a finding of guilt nor of innocence)
    and the trial judge below also could not make a finding either way. There is no
    guarantee that a third trial on the question of the events of that day  now
    more than four-and-a-half years in the past  would reach any definite
    conclusion. Perhaps more to the point, even if a court did conclude in one
    partys favour, it is not clear that this would significantly affect the
    custody and access orders to be made in the childrens best interests.

[149]

The children
    have been living with their mother for the past four-and-a-half years. They
    have had community-supervised access with their father, which was increased in
    August, 2014 and again in February, 2015 by order of Hoy A.C.J.O.

[150]

What is in the
    present best interests of these children is for their parents and the court to
    focus on a plan that reflects the childrens current needs and circumstances.

[151]

The needs of
    these children should be addressed sooner rather than later. There has been no
    report from any professional since Dr. Jaffes report that essentially represented
    the state of affairs as of December, 2012. He recommends a review in January
    2014. There was no such review. There was no evidence placed before the trial
    judge after his August, 2014 interim order and before the release of his final
    reasons nor has there been any application before this court to file fresh
    evidence to demonstrate how the children are coping now. Access was increased
    in August, 2014 and again in February, 2015 by order of Hoy A.C.J.O. and there
    is no evidence before us as to how the children are managing with these
    changes.

[152]

I would order a
    new hearing of the application for custody and access based on an updated
    section 30 assessment by Dr. Jaffe or another assessor agreed to by the
    parties. However, that new hearing will not retry or decide the events of
    December 23, 2010 for the reasons expressed above in paragraphs 143 to 150. Given
    the independent and uncontradicted expert evidence in this case, to once again
    retry the events of that day for the purpose of determining custody and access is
    simply not in the childrens best interests.

[153]

The assessor will
    receive both parties accounts of that event and can recommend an access plan
    for the children in the absence of a definite conclusion about the Jamaica
    event. Dr. Jaffes January 2013 recommendation was that the wife would continue
    to have sole custody of the children while the husbands access would increase
    over time. Since then, interim orders have gradually increased the husbands
    access. In the absence of any material change in circumstances unknown to this
    court, the updated assessment should focus on whether, and if so by how much,
    the husbands access should continue to increase, as well as whether there
    should be any change in the supervision requirement.

[154]

Given the
    absence of fresh evidence before this court about how the children are faring under
    the most recent February 2015 order, I would not disturb that order at this
    time.

[155]

Pending the new
    custody and access trial, any application to change the current access
    arrangements shall be made on proper materials to the Superior Court of
    Justice.

[156]

The appeal is
    allowed and the judgment below is set aside except paragraphs 3, 5 and 29,
    which remain in force. A new trial is ordered on the issues of custody and
    access in accordance with these reasons. If the parties wish to pursue any of
    the other claims, these shall proceed as a separate action severed from the
    custody and access dispute.

[157]

The costs order
    made below must also be set aside. In my view, neither party succeeded in the
    court below, where the Jamaican incident occupied most of the trial. In these
    circumstances, each party should bear his or her own costs.

[158]

On the agreement
    of the parties, it is ordered that there be no costs of this appeal.

Released: September 4, 2015 (PDL)

J. MacFarland J.A.

I agree Paul Rouleau J.A.

I agree P. Lauwers J.A.





[1]
In Jamaica the passenger seat is on the left-hand side of the vehicle when
    facing forward.


