Clayson-Martin v. Martin
Ontario Reports
Court of Appeal for Ontario,
MacFarland, Rouleau and Lauwers JJ.A.
September 4, 2015
127 O.R. (3d) 1 | 2015 ONCA 596
Case Summary
Courts — Judges — Bias — Reasonable apprehension of bias — Trial judge in custody proceedings finding wife's claim that husband tried to kill her not to be credible and granting husband generous access to children — Wife's appeal allowed — Trial judge dismissive of independent evidence which supported wife's version of events — Trial judge focusing on minor inconsistencies in wife's evidence while excusing glaring contradictions in husband's evidence — Trial judge's uneven treatment of parties' evidence giving rise to reasonable apprehension of bias.
Evidence — Hearsay — Respondent acquitted in Jamaica of wounding appellant with intent — Blood expert testifying for Crown at that trial — Trial judge in subsequent custody proceedings erring in admitting transcript of expert's evidence under principled exception to hearsay rule — Evidence lacking threshold reliability — Trial judge's reliance on inadmissible evidence leading him to conclude that appellant's claim that respondent tried to kill her was not credible — Appeal from order granting respondent generous access to children allowed.
Family law — Children — Access — Best interests of child — Wife claiming that husband tried to kill her — Trial judge finding wife's claim not to be credible and granting husband generous access to children — Wife's appeal allowed — Trial judge failing to keep focus of inquiry on best interests of children and failing to address issue of domestic violence as required by s. 24 of Children's Law Reform Act — Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 24.
The appellant claimed that her husband, the respondent, tried to kill her on a Jamaican vacation by cutting her throat. She suffered an ear-to-ear knife wound to her throat and a cut to her thumb. The respondent claimed that the appellant attacked him and probably sustained the knife wound when he pushed her hand bearing the knife away from him in self-defence. The respondent was uninjured, and initially told the Jamaican police that a Jamaican man had attacked them. He maintained that story throughout his criminal trial in Jamaica. He was acquitted of wounding the appellant with intent. He subsequently admitted that the story about the Jamaican assailant was a complete fabrication. The parties separated after the incident, and the wife sought custody of their children. The trial judge concluded that he could not find, even on a balance of probabilities, that the respondent attacked the appellant. He awarded the appellant sole custody. The appellant appealed that order because it provided for the children to have generous access to the respondent.
Held, the appeal should be allowed.
The trial judge erred in admitting, under the principled exception to the hearsay rule, the transcript of the evidence of a blood expert who testified for the Crown at the Jamaican criminal trial. Contrary to the trial judge's finding, that the expert's evidence was under oath, did not speak to her reliability. It spoke only to her veracity and credibility as a witness. Since the concern was not that the expert might have been lying but rather that she might have been mistaken, the oath did not assist. On the issue of reliability, the trial judge should have considered that the appellant was not a party to the criminal proceedings and had no opportunity to cross-examine the expert, and that while the expert was cross-examined in Jamaica, that cross-examination was conducted by the respondent, whose interests were diametrically opposed to those of the appellant. Moreover, it was clear from reading her evidence that the expert had failed to conduct a thorough analysis. The evidence was inadmissible for want of threshold reliability. The trial judge's reliance on this evidence permeated his entire analysis. His conclusion rested on a substantial error and resulted in a miscarriage of justice.
The trial judge rejected independent objective evidence that supported the appellant's version of the incident. He focused on minor inconsistencies in the appellant's evidence while excusing glaring contradictions in the respondent's evidence. His uneven treatment of the parties' evidence gave rise to a reasonable apprehension of bias.
The trial judge failed to consider the full range of factors affecting the best interests of the children. Nowhere in his reasons did he address the various factors under s. 24(2) of the Children's Law Reform Act. Importantly, there was no consideration of the issue of domestic violence -- an issue that arose on either party's account of the events in Jamaica -- or how, if at all, it might affect the proposed arrangements. The failure to consider fully the best interests of the children amounted to reversible error.
A new hearing of the custody and access application was ordered, with a direction that the new hearing not retry the Jamaican incident. In the circumstances, a retrial of the events of that day for the purpose of determining custody and access was not in the children's best interests.
R. v. Khelawon, [2006] 2 S.C.R. 787, [2006] S.C.J. No. 57, 2006 SCC 57, 274 D.L.R. (4th) 385, 355 N.R. 267, J.E. 2007-28, 220 O.A.C. 338, 215 C.C.C. (3d) 161, 42 C.R. (6th) 1, EYB 2006-111773, 71 W.C.B. (2d) 498, apld
R. v. Hawkins (1996), 1996 154 (SCC), 30 O.R. (3d) 641, [1996] 3 S.C.R. 1043, [1996] S.C.J. No. 117, 141 D.L.R. (4th) 193, 204 N.R. 241, 96 O.A.C. 81, 111 C.C.C. (3d) 129, 2 C.R. (5th) 245, EYB 1996-67709, J.E. 96-2285, 32 W.C.B. (2d) 388, affg (1995), 1995 1859 (ON CA), 22 O.R. (3d) 193, [1995] O.J. No. 523, 79 O.A.C. 241, 96 C.C.C. (3d) 503, 37 C.R. (4th) 229, 26 W.C.B. (2d) 457 (C.A.), distd
Other cases referred to
Lloyd v. Bush (2012), 110 O.R. (3d) 781, [2012] O.J. No. 2343, 2012 ONCA 349, 292 O.A.C. 251, 350 D.L.R. (4th) 81, 215 A.C.W.S. (3d) 75; R. v. James, [2011] O.J. No. 6275, 2011 ONCA 839, 287 O.A.C. 18, 283 C.C.C. (3d) 212, 101 W.C.B. (2d) 202; R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36, 114 D.L.R. (4th) 419, 166 N.R. 245, J.E. 94-778, EYB 1994-67655, 71 O.A.C. 241, 89 C.C.C. (3d) 402, 29 C.R. (4th) 243, 23 W.C.B. (2d) 385; R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915, [1992] S.C.J. No. 74, 94 D.L.R. (4th) 590, 139 N.R. 323, J.E. 92-1312, 55 O.A.C. 321, 75 C.C.C. (3d) 257, 15 C.R. (4th) 133, 17 W.C.B. (2d) 97; White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] S.C.J. No. 23, 2015 SCC 23, 18 C.R. (7th) 308, 470 N.R. 324, 383 D.L.R. (4th) 429, 67 C.P.C. (7th) 73, 360 N.S.R. (2d) 1, 2015EXP-1385, J.E. 2015-767, EYB 2015-251384, 251 A.C.W.S. (3d) 610; Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), [2015] S.C.J. No. 25, 2015 SCC 25, 471 N.R. 206, 84 Admin. L.R. (5th) 185, 383 D.L.R. (4th) 579, 2015EXP-1501, J.E. 2015-825, EYB 2015-252077, 252 A.C.W.S. (3d) 247
Statutes referred to
Children's Law Reform Act, R.S.O. 1990, c. C.12, ss. 24 [as am.], (2) [as am.], (4) [as am.], (a), 30 [as am.]
Criminal Code, R.S.C. 1985, c. C-46, s. 715 [as am.]
Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16(8)
Authorities referred to
Lederman, Sidney N., Alan W. Bryant and Michelle K. Fuerst, Law of Evidence in Canada, 4th ed. (Toronto: LexisNexis, 2014)
APPEAL from the custody and access order of Timms J., [2014] O.J. No. 6218, 2014 ONSC 7530 (S.C.J.).
Marie Henein, Martha McCarthy, Danielle Robitaille and Jenna Beaton, for appellant.
Dani Z. Frodis and Robyn Switzer, for respondent.
The judgment of the court was delivered by
[1] MACFARLAND J.A.: — This is a custody and access dispute over a boy and girl, ages ten and seven.
[2] The wife appeals the trial judge's 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 wife's evidence, he slit her throat, forced her into the vehicle after she attempted to flee, strangled her and then drove 17 km 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 didn't 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 husband's 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 driver's side and held her as he drove from the scene;
(6) the husband drove for 17 km 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 cellphone to get help;
(12) the husband repeatedly told police that a big Jamaican man had attacked them, slit the wife's 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 wife's version of what occurred has been consistent throughout: "my husband slit my throat".
(1) The wife's evidence
[8] The wife's 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 wife's 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 back seat, leaned into the back seat 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 driver's 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 driver's 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 17 km, 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 husband's 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 wife's 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 reiterated 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 husband's criminal trial in Jamaica in 2011 on the charge of wounding with intent.
[17] Second, she argues that the trial judge's 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 husband's 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 Children's 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 wife's 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 husband's self-defence.
IV. Analysis
(1) Improper admission and reliance on hearsay evidence
[21] Ms. Brydson's blood evidence was central to the trial judge's assessment of the wife's credibility.
[22] Ms. Brydson was the blood expert called by the Crown prosecutor at the husband's criminal trial in Jamaica. She examined the vehicle on January 5, 2011 for the presence of blood.
[23] The wife's 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 driver's side to lock the other doors.
[24] At the husband's 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. That's correct.
Q. And the same is true for the right rear passenger door?
A. That's correct.
[25] Ms. Brydson's evidence was that she found no indication of blood in the back seat area of the car.
[26] The husband sought to admit the transcript of this evidence over the wife's strenuous objection.
(a) The hearsay objection
[27] The trial judge admitted Ms. Brydson's evidence under the principled exception to the hearsay rule, as articulated by the Supreme Court of Canada in R. v. Khelawon, [2006] 2 S.C.R. 787, [2006] S.C.J. No. 57, 2006 SCC 57. 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 79 (SCC), [1992] 2 S.C.R. 915, [1992] S.C.J. No. 74, at pp. 933-35 S.C.R.
[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 pigeonholing 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), 1996 154 (SCC), 30 O.R. (3d) 641, [1996] 3 S.C.R. 1043, [1996] S.C.J. No. 117 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 fact's 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. Brydson's 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 accused's 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 [ (1995), 1995 1859 (ON CA), 22 O.R. (3d) 193, [1995] O.J. No. 523 (C.A.)] 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, R.S.C. 1985, c. C-46 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 party's right to contemporaneous cross-examination. It is only tainted by the lack of the declarant's 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. Brydson's 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 wife's perspective. The Crown prosecutor led Ms. Brydson's evidence-in-chief and the husband's counsel cross-examined her. It cannot be assumed that it was in either party's interest to discredit this witness' evidence or suggest that her blood inspection may have been superficial. The wife's goal in cross-examining Ms. Brydson would be quite different from either the Crown's or the husband's at the criminal trial. It would be in her interest to argue that because Ms. Brydson's 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, 4th ed. (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 husband's cross-examination is no substitute for hers: R. v. James, [2011] O.J. No. 6275, 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. Brydson's 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. Brydson's evidence.
[44] I also note that in admitting Ms. Brydson's 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 Brydson's 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. Karma's report was improperly admitted at the trial, this does not provide a basis upon which to admit Ms. Brydson's 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 10 cm 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 I've already found that Ms. Brydson's 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 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36. The Supreme Court has also recently articulated in White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] S.C.J. No. 23, 2015 SCC 23, 470 N.R. 324 that the court's 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. Brydson's evidence was crucial to the trial judge's assessment of the wife's 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 wife's 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 respondent's 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 applicant's version of events[.]
[52] The trial judge's 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 Blackmore's 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. Brydson's 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 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. Brydson's 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. Blackmore's approach, it is apparent from Ms. Brydson's 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 back seat. 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. Blackmore's 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 back seat 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. Brydson's evidence.
[64] The trial judge does not deal at all with the significant reliability concerns that Ms. Blackmore's evidence raises in relation to Ms. Brydson's. He simply dismisses her evidence as "conjectural".
[65] In my view, Ms. Blackmore's 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. Brydson's evidence to the trial judge's ultimate assessment of the wife's credibility, the trial judge was obliged to consider the effect of Ms. Blackmore's evidence on the thoroughness of Ms. Brydson's search.
[67] At the very least, Ms. Blackmore's evidence shakes one's confidence in Ms. Brydson's conclusion that there was no blood in the back seat area. Yet the trial judge simply rejects Ms. Blackmore's evidence as conjectural, having already concluded (at para. 181) that Ms. Brydson's evidence is the best evidence in the husband's 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 court's primary duty is to inquire into the children's 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, Education Area #23 v. Yukon (Attorney General), [2015] S.C.J. No. 25, 2015 SCC 25: "The objective of the test is to ensure not only the reality, but the appearance of a fair adjudicative process" [emphasis in original].
[71] The threshold for finding a reasonable apprehension of bias is extremely high: See Lloyd v. Bush (2012), 110 O.R. (3d) 781, [2012] O.J. No. 2343, 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 judge's 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 husband's evidence raised;
(3) the trial judge rejected the wife's 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 judge's 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 bystander, 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 husband's 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 para. 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. Warren's 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 wife's 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 husband's 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 driver's 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 Uturn 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. It's 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 woman's throat and blood coming between the fingers that were on her throat.
[88] The trial judge recited Mr. Russell's 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 wife's version of events. It was important evidence that the trial judge fails to advert to as supporting the wife's account. Mr. Russell's 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 didn't deal with this evidence. While not determinative, Mr. Russell's observations are, as the wife submits, more consistent with her account than with the husband's.
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 wife's injuries might have been sustained.
[90] He was asked by the husband in cross-examination:
Q. 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?
R. Then all bets are off. It's possible any part of the hand could get injured.
S. And what if you have most of the hand on the neck but the thumb raised or free?
A. Then it's possible to cut any part of the thumb.
[91] Dr. Pickup's evidence was that he could not exclude the wife's 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 it's 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. Pickup's evidence, at paras. 170 and 183 of his reasons, as follows:
That takes me to the applicant's thumb. It would have been impossible for the inner portion of the applicant's 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 appellant's 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. Pickup's 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 wife's 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. Pickup's 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 didn't deal with this evidence. Instead, he ignored the forensic pathologist's description of the wound on her thumb as "defensive". And perhaps most alarmingly, he completely ignored this expert's evidence that in comparing each party's account, the neck injury rendered the husband's 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 applicant's wounds, or the circumstances around which the applicant sustained these wounds. He was unable to exclude the applicant's explanation for how the injuries on her neck and thumb were sustained. At best, this is a rather lukewarm endorsement of the applicant's version of events.
[95] Again, the trial judge is dismissive of evidence which supports the wife's 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 wife's 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 husband's evidence
[97] 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.
[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 wife's 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 wife's evidence -- calling evidence that is in fact quite consistent "all over the map", the jarring inconsistencies in the husband's version get a pass. The husband drove for 17 km 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 cellphone 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 wife's evidence. There were. But while these were all emphasized, the significant and material inconsistencies in the husband's evidence were ignored.
[103] While he relied on Ms. Brydson's evidence that she saw no blood on the "buttons" in the back seat area to undermine the wife's version of the incident, the trial judge ignored Ms. Brydson's 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 husband's 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 wife's evidence. When asked in cross-examination whether it was "probable" that there would be blood she said: "I would say, I mean I wouldn't -- I'm 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 back seat area.
[105] In my view, the trial judge's 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 husband's 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 judge's primary obligation was to determine the children's 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 husband's version of events over the wife's 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] 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 Paul's voice.
THE COURT: You just can't stop yourself.
Ms. McCarthy: Well, I'm trying to Your Honour.
Q. All right. Dr. Jaffe's 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 don't 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 that's 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 didn't. And when asking you to clarify that, your remark was inappropriate and unjustified. And perhaps we'll 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, you're the one coming here presenting evidence . . .
THE COURT: You're 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 he's given the best answer he can.
Ms. McCarthy: Your Honour, I apologize if you believe I'm chastising.
THE COURT: Well, you should listen to yourself sometimes, counsel.
THE COURT: You're talking about where there's 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 hi[m] 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 that's at least the third time today that you've given me a sarcastic response . . .
Ms. McCarthy: Well, I wasn't . . .
THE COURT: . . . to an interjection by me and perhaps you're getting tired, perhaps I'm getting tired but I don't appreciate it when you . . .
Ms. McCarthy: I was not being sarcastic Your Honour. I'm sorry . . .
THE COURT: I can tell you that's my perception and I think it's a pretty valid one. And perhaps we'll have a recess and I really, really don't 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 wouldn't put a knife, a Swiss army knife, in your pocket of your shorts on the way to the airport.
R. I had a Swiss army knife on me every time I went on an excursion. It's just something that I have. It's 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. That's right. And the morning . . .
THE COURT: Should I tell you how many Swiss army knives I've 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 counsel's 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 counsel's ability to present her client's 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 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 judge's 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 wife's 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 Paul's 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 husband's 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 Martin's 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 para. 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 judge's 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 1:00 p.m. to 7:30 p.m. But supervision continued, with one of the husband's 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 judge's most significant error was failing to keep the inquiry's 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 p. 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 children's 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 husband's 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 wife's 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 ten and seven years of age. They were five and two 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. Jaffe's 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 wife's 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 party's 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 judge's 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 appellant's damages claim, for the purposes of determining custody and access, the children's best interests govern. Section 16(8) of the Divorce Act, R.S.C. 1985, c. 3 (2nd 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 person's 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 wife's 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. Jaffe's 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 doesn't 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. Jaffe's report concludes as follows, at p.19: "One is left to consider [the husband's] 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 party's favour, it is not clear that this would significantly affect the custody and access orders to be made in the children's 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 children's 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. Jaffe's 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 s. 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 paras. 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 children's 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. Jaffe's January 2013 recommendation was that the wife would continue to have sole custody of the children while the husband's access would increase over time. Since then, interim orders have gradually increased the husband's 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 husband's 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 paras. 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.
Appeal allowed.
Notes
[^1]: In Jamaica, the passenger seat is on the left-hand side of the vehicle when facing forward.