By Jeff Mitchell From Durham region.com

DURHAM — Ontario’s appeal court has overturned a Durham Region judge’s ruling in a child custody case that included allegations of an attempted murder during a Caribbean vacation.

Superior Court Justice Roger Timms made errors including misapprehending evidence, improperly allowing the introduction of some evidence, and making “troubling” findings of credibility in his handling of the case of Paul Martin and Cathy Clayson-Martin, says an Ontario Court of Appeal ruling released Sept. 4.

The appeal court ordered a new hearing on custody and access for the former Ajax couple’s two children, now aged 10 and 7. The ruling concluded that while much of the trial testimony heard by Justice Timms last year was concentrated on the events of Dec. 23, 2010, when Ms. Clayson-Martin alleged Mr. Martin attempted to kill her by cutting her throat, the judge’s ruling failed to focus on the primary issue, the welfare of the children.

“For all the errors discussed above, perhaps the trial judge’s most significant error was failing to keep the inquiry’s focus on the best interests of the children,” says the ruling, endorsed by Court of Appeal Justices Jean MacFarland, Paul Rouleau and Peter Lauwers.

The appeal arose from a trial heard last year in Oshawa, at which Ms. Clayson-Martin sought to have her ex-husband’s access to their two children terminated. Central to her case was her allegation that Mr. Martin, whom she married in 2007, tried to kill her in 2010 when he drove her to a secluded area near their Jamaican resort and attacked her with a knife.

Mr. Martin was arrested for attempted murder and eventually went to trial in Jamaica on a reduced charge; he was found not guilty.

The family court trial in Oshawa was in many ways a re-trying of that case; Ms. Clayson-Martin testified, giving a harrowing account of how her husband slit her throat with a knife, then drove off and left her by a lonely roadside.

Mr. Martin, who represented himself at trial, told the court that Ms. Clayson-Martin was the aggressor, and that she was injured as he defended himself from her as she wielded the knife.

Justice Timms ultimately ruled that he could not conclude Mr. Martin had attacked Ms. Clayton-Martin, commenting that “the evidence tilts in the opposite direction.” The judge imposed a new order that greatly increased Mr. Martin’s access to the children.

Ms. Clayson-Martin’s appeal, heard in June, alleged several errors by the judge, and claimed he had displayed a bias in favour of the self-represented Mr. Martin during the 20-day trial.

While the appeal court judges stopped short of concluding the judge was biased, they did find that he appeared to put evidence put forth on Ms. Clayson-Martin’s behalf to a higher test than that of her ex-husband. That’s in spite of the fact Mr. Martin admitted to lying to Jamaican police about the attack, claiming he and his wife had been beset by a local with a knife, the court noted.

“The trial judge’s treatment of the wife’s evidence is particularly troubling when contrasted with his generosity in treating inconsistencies in the husband’s evidence,” said the ruling. “The trial judge is dismissive of evidence which supports the wife’s version of events … the jarring inconsistencies in the husband’s version gets a pass.”

The court also found the judge erred in accepting blood spatter evidence from Mr. Martin’s criminal trial that cast doubt on Ms. Clayson-Martin’s version of the attack, while appearing to dismiss testimony from an expert who raised concerns about possible deficiencies in the Jamaican investigation.

“His conclusion rested on this substantial error and resulted in a miscarriage of justice,” the appeal court found.

The judge also in some instances misapprehended testimony of witnesses, and incorporated those mistakes in his findings, the ruling says.

While a new hearing on custody matters has been ordered, the appeal court instructed that it not be a re-trying of the Jamaica incident.

“The needs of these children should be addressed sooner rather than later,” the ruling says.

Jeff Mitchell is the justice reporter for Metroland Media Group in Durham Region, Ontario.

IMAGE: Paul Martin and Cathy Clayson Torstar File Photo
Paul Martin, left, seen at Toronto’s Pearson International Airport in 2011 and Cathy Clayson, at far right as she leaves court in 2014, have been battling in civil court over the terms of their split after Martin was found not guilty in 2011 of attacking her in Jamaica.

For more on this story go to: http://www.durhamregion.com/news-story/5838959-new-hearing-ordered-in-durham-family-court-case-that-included-allegations-of-caribbean-knife-attack/

Related story:

Too many lies’ derail Ajax couple’s custody fight after throat slitting incident in Jamaica

By Daniel Otis From Durham region.com

Paul Martin was acquitted in Jamaica after his wife was found with her neck slashed.

An Ontario Superior Court judge has added another layer of confusion to an Ajax couple’s story of a 2010 throat-slashing incident while on vacation in Jamaica, pushing their legal battle into the Court of Appeal.

With their marriage on the brink of collapse, Paul Martin and Cathy Clayson travelled to Montego Bay in late 2010. The trip was tense, the court heard. Clayson, a bank manager, had wanted out of their marriage; Martin, a schoolteacher, clung to hopes of staying together.

On their last day in Jamaica, the couple followed an isolated road in their rental car to take pictures from a cliff. There, Clayson alleges, Martin slashed her throat with a hooked gutting knife before strangling her and leaving her for dead. Martin, now 47, maintains that Clayson, 38, attacked him first and injured herself in the resulting melee and fled. Clayson was left with a 10-cm gash across her neck.

Martin, who spent four months in Jamaican jail awaiting trial, had at first told Jamaican police that he and Clayson had been robbed — a story that Clayson admits to having concocted in the aftermath of the scuffle. A Jamaican jury acquitted Martin of “wound with intent” following an 11-day trial in late 2011. The knife was never recovered.

Now, after a prolonged legal battle at the Ontario Superior Court in Oshawa, a judge has declared that he has no idea what transpired along that dirt road in Jamaica on the afternoon of Dec. 23, 2010.

“I cannot find, even on a balance of probabilities, that the respondent (Martin) attacked the applicant (Clayson) . . . If anything, the evidence tilts in the opposite direction,” Justice Roger Timms wrote in his Dec. 30 decision.

“The parties have both told too many lies. They have both distorted and exaggerated the truth too often. They have both said too many nonsensical and illogical things.”

Martin declined to comment for this story; so, too, did Clayson and her lawyers.

Clayson had brought her estranged husband to the civil court last year to seek the justice she believed she had been denied in Jamaica. In addition to a divorce, she sought more than $300,000 in damages, custody of their 9- and 6-year-old children, an end to Martin’s access to the children and a declaration from the court stating that Martin had attempted to murder her that day four years ago.

The judge declined to make that declaration or grant the damages Clayson sought. With Timms unable to come to a conclusion about what transpired between Clayson and Martin, he ruled that while Clayson should have sole custody of the couple’s children, Martin should also be granted equal and unsupervised access. A prior court order had only allowed Martin limited supervised access to the children.

The 20-day trial in Oshawa, which took place between May and July, was at times both emotional and bizarre. Martin opted to represent himself, which made for a tense spectacle as he cross-examined Clayson — the first time the two had spoken since the month of the alleged attack.

In another strange move, Justice Timms made an order on Dec. 23 to give Martin unsupervised access of the children between Dec. 26 and Dec. 31. Martin had not requested this. Clayson’s lawyers immediately demanded a stay on that order. The judge who stayed the ruling said Timms’ order was a “profound violation of natural justice.”

Despite Clayson’s testimony, Timms’ decision stated that nothing pointed to there being a premeditated attack.

Clayson’s lawyers filed a motion on Dec. 29 asking Timms to declare a mistrial on the basis of procedural unfairness, an unfair hearing and reasonable apprehension of bias. With the motion being filed a day before the final judgment was released, nothing came of the motion.

Citing those same reasons and a fear for her children’s safety, Clayson has now retained Marie Henein, the high-profile lawyer who is currently defending disgraced CBC host Jian Ghomeshi, to argue an appeal. A notice of appeal was filed on Jan. 5 and a hearing has been scheduled for later this month to determine whether or not Timms’ decision should be stayed pending appeal.

Daniel Otis is a reporter for the Toronto Star

With files from Alyshah Hasham

IMAGE: Paul Martin and Cathy Clayson
Paul Martin and Cathy Clayson Torstar File Photo Paul Martin, left, seen at Toronto’s Pearson International Airport in 2011 and Cathy Clayson, at far right as she leaves court in 2014, have been battling in civil court over the terms of their split after Martin was found not guilty in 2011 of attacking her in Jamaica.

For more on this story go to: http://www.durhamregion.com/news-story/5253154–too-many-lies-derail-ajax-couple-s-custody-fight-after-throat-slitting-incident-in-jamaica/