OSHAWA COURT FILE NO.: FC-11-29-0000

DATE: 20141230

CORRIGENDA DATE: 20150413

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN

CATHY MARTIN (CLAYSON)

Applicant

— and —

PAUL MARTIN

Respondent

COUNSEL:

Martha McCarthy and Jenna Beaton for the applicant

Paul Martin, acting in person

HEARD: May 23, 26, 27, 28, 29; June 2, 3, 4, 5, 6, 10, 11, 12, 13, 16, 17, 18, 27; July 3, 4, 2014

TIMMS J.

REVISED Reasons for judgment

Introduction

[1] On August 6, 2014, I released my reasons with respect to the question of granting the respondent access to the children of the marriage outside of a supervised access center (SAC), pending my final judgment. Since then, the parties have apparently submitted three 14B motions.[^1] I say “apparently” because the last of those three motions was never filed. The only true issue of substance dealt with in the two other motions concerned necessary changes to the interim access terms set out by me in my endorsement of August 6, 2014.

[2] The time has now come to deal with all of the issues raised in the parties’ pleadings - concerning which there was evidence and argument at the trial herein - on a final basis. I do not intend to repeat my findings or my analysis of the evidence contained in my endorsement of August 6, 2014. I will, when necessary, make reference thereto. For the ease of any readers, I am attaching a copy of that endorsement hereto.

[3] There was some basic information not set out in my endorsement of August 6, 2014. The parties were married on July 17, 2004. The date of separation is obviously December 23, 2010. There are the two children mentioned previously: Emma, born July 7, 2005, and Kaiden, born February 12, 2008.

[4] There are many legal and factual issues to be examined. To start, I must decide whether the respondent did try to kill the applicant on December 23, 2010. My decision regarding the questions of custody and access will depend largely upon that. There is the issue of the applicant’s claim for damages for assault and battery. The applicant seeks a permanent restraining order. Those latter two matters likewise will turn on what I find happened on December 23, 2010. There are the questions of basic child support and section 7 expenses. There are equalisation issues. Finally, the respondent brought a contempt motion on January 10, 2014, which was referred to trial.

The Evidence & Some Observations Thereon

Jamaica, December 2010

[5] Because several issues depend upon what happened in Jamaica on December 23, 2010, I will start with that. The majority of the 19 days of evidence dealt with this topic. Some of the evidence was relevant, some of it was marginally relevant, but much of it was not at all relevant. The evidence of the applicant and the respondent, both in chief and in cross, was often entirely conflictual, but often tantalisingly similar. Much of what each of the applicant and the respondent said individually made no sense from any standpoint.

[6] As I explored to some extent in my endorsement of August 6, 2014, and as Dr. Jaffe set out in his report of January 22, 2013, the parties have very different personalities and employed different approaches to parenting. That led to misunderstandings and conflict over many things, both large and small. This worsened in 2009, and by 2010 the applicant had more or less concluded that the marriage was over. That said, much of the time the parties very often managed their marriage and their household in a reasonably harmonious fashion. They offered one another support in different ways, financially, emotionally, and otherwise. It is worth noting this for at least a couple of reasons. First, if one listened exclusively to what the applicant said in chief, and read only what she told Dr. Jaffe, one would conclude that the respondent was a monster and that life with him was a virtual hell. Second, the reality of their relationship bears upon why the parties went to Jamaica in December 2010, and possibly what happened there.

Planning for Jamaica

[7] The applicant’s theory is that even before the parties went to Jamaica in December 2010, the respondent had planned to kill her there, and that he attempted to carry out his plan on December 23, 2010. To substantiate that theory, the applicant led evidence about the respondent’s behaviour, including: his going shopping just before the Jamaican vacation; what he bought on that occasion; what was and what was not in his daytimer for 2011; his installing a lock on his closet in the matrimonial bedroom; his changing the beneficiaries of his life insurance; his insistence on going to Jamaica for the December vacation, even though he knew that the applicant was concerned about going there, and even though their friends with whom they were planning to travel did not want to go there; and his decision to rent a car there, when it was not necessary.

[8] Even though it is my conclusion that the value of the evidence amounted to nil, I will start with the shopping. It would seem that the respondent went shopping on November 20, 2010. He bought some clothes at Moores, Clothing for Men. Among other things, he bought some shirts and two or three ties. He returned that clothing on December 14, 2010, because it was then on sale, and repurchased it for a lesser amount.

[9] The applicant saw this new clothing in the respondent’s closet after her return from Jamaica. She saw the receipts for this clothing which she said had been purchased shortly before the trip to Jamaica. She described the ties as being “dark” and the shirts as black or navy. She testified that the respondent did not normally wear ties on a daily basis but rather for school interview nights, and for weddings and funerals. She said that she had never seen the respondent wearing a black dress shirt.

[10] The inference that the applicant wishes the court to draw is that the respondent bought this clothing contemplating that he would wear it to her funeral, after returning to Canada as a bereft widower. Given the respondent’s evidence as to when he wears more formal clothing, which evidence was essentially confirmed by the applicant when she gave her evidence in chief, that would be a very serious leap of illogic indeed.

[11] The shirt and tie business ties in with the applicant’s evidence about the lock on the respondent’s closet door. The court heard two very different stories about this closet door. The applicant insisted several times that she never saw the lock on the door before departing for Jamaica on December 18, 2010. The respondent testified that the lock was installed many months earlier as a result of an incident when the applicant smashed the glass on their engagement picture and then threw it into his walk-in closet.

[12] In her evidence in chief, the applicant testified that the picture was broken after the respondent chased her upstairs during an argument and forced her into the corner of the bedroom by the closet. She threw her hands up and struck the picture, causing the glass to break, and cutting her knuckles. She left the house, went shopping, and then went to a walk-in clinic to get stiches for the cut to her hand. This was in December 2008. The applicant maintained this story when cross-examined. She did agree that she threw the picture into the respondent’s walk-in closet, but only after she returned home. She also maintained that she only became aware of the lock after she returned from Jamaica, even though the parties continued to sleep in the same bed, in the same bedroom, with its two walk-in closets, up until their departure for Jamaica on December 18, 2010.

[13] When she was crossed examined, the applicant admitted that she had said when being cross-examined at the criminal trial, “I smashed it”, referring to how the picture was broken. The applicant denied that her words meant that the respondent’s version of how the picture was broken was truthful.

[14] The applicant’s sister, Michelle Iervasi, gave evidence about going to the former matrimonial home immediately upon her return from Jamaica.[^2] Ms. Iervasi said that she went up to the master bedroom and there observed the respondent’s locked closet door. Her brother Steve and his brother-in-law, also named Steve, removed the door with some tools, although she did not observe exactly how they did it. Although she did not specify when, Ms. Iervasi said that she had been in the bedroom several times before but had not noticed the lock. From everything said by the witnesses regarding this lock, including that Steve and Steve found it necessary to remove the actual door itself, I can only infer that it was reasonably substantial. All in all, it seems very unlikely that the respondent somehow secretly installed it on the eve of the parties’ departure for Jamaica.

[15] What was found when the closet door was removed? Well, for one thing the respondent’s new clothing; for another, the respondent’s daytimer. From the applicant’s point of view, this is the next piece of damning evidence. The respondent had written in various events for the upcoming year, including various birthdays. What was not entered was the applicant’s birthday. The court was expected to accept this as proof that the respondent knew that the applicant would not be around to celebrate her birthday, because he intended to kill her in Jamaica. It no more proves that the respondent went to Jamaica intending to kill the applicant, than the entry by the respondent noting February 14, 2011 as Valentine’s Day, proves the opposite.

[16] Another thing found in the closet was documentation showing that the respondent had changed the beneficiary of his teacher’s pension, from the applicant to the children of the marriage. The respondent admitted to this and that he did not inform the applicant of the change. As far as I can recall, he never testified in chief as to why he did that. When he was cross-examined regarding this issue, he was never asked why he made the change. He told Dr. Jaffe that he had made the change because he did not trust the applicant with money. While this might support that the respondent thought that a separation was imminent, it does not support an intention on his part to kill the applicant when in Jamaica.

[17] There was a significant amount of evidence led by both sides regarding why they decided to take a trip to Jamaica in December 2010. The applicant’s evidence in chief was that they were originally planning a trip to Mexico or the Dominican Republic with their neighbours, Basil Toussaint and Charlene Pascal. This started in September or October 2010. The men agreed that the women would do the planning. The respondent later said that he wanted to go to Jamaica, because they had already been to Mexico and the Dominican Republic. The applicant spoke to the neighbours who said that they did not want to go to Jamaica, but the respondent was adamant. He then booked the trip in late October or early November. According to the applicant, as the time approached, she decided that she did not want to go on a trip with the respondent alone because she knew that in the New Year she and the respondent would be separating. However, she ultimately agreed to go as “friends”, on the understanding that they would separate in the New Year and put their house on the market.

[18] The applicant said that she was nervous about going to Jamaica because she felt it was not safe. She did not want to rent a car for the same reason, and did not understand why they would even need a car. They had never rented a car before on a vacation. She said that she was advised by friends not to venture off the resort, except with a tour guide. When she told the respondent about her concerns, he said he had spoken to a neighbour and that it would be fine. Even though she remained nervous about the whole trip, the parties left Canada on December 18, 2010, for a five day stay at the Iberostar resort.

[19] Before asking the applicant questions regarding the lead-up to the trip to Jamaica, the respondent cross-examined the applicant regarding the nature of their relationship in December 2010. The applicant first said that by the spring of 2010, things were not good. She had discussions with the respondent starting at that time about how the marriage was not working for her. However, the applicant agreed that the parties had, around the same time, if not later, discussed plans to sell the matrimonial home, and then move further east to cheaper accommodation, in order to take some of the financial pressure off the respondent.

[20] The applicant said that she had made it clear by December that she would be leaving him in the New Year. She added that she had reached the boiling point; that she could not take the respondent’s abusive violent behaviour anymore; that there was not much left in the relationship; and that she was fearful of the respondent. But she also said that even though she wanted the marriage to be over, there was still at that time a small piece of her that wanted to work through things. For that reason, she agreed to plan a December vacation with the respondent, and then went on that vacation.

[21] The applicant twice denied that the respondent wanted to bring the children on the December 2010 trip. However later on, she qualified that somewhat by saying that she did not recall the respondent repeatedly saying during the get-together with Mr. Toussaint and his wife that he did not want to leave the children behind. She did agree that they had gone away as a family in December 2009, as a compromise, after she had wanted to go on a trip alone with the respondent to celebrate their fifth anniversary and the respondent had wanted a family trip.

[22] The applicant agreed that the day after the get-together with Mr. Toussaint and his wife, the respondent said that he did not want to go to Mexico because they had been there the year before and because the applicant herself was going there that very November.

[23] The applicant called Mr. Toussaint as a witness. He testified about a discussion sometime in the fall of 2010 regarding a trip to a number of places. They settled on Mexico. Then one day the respondent approached him to tell him that he had booked a trip to Jamaica. The respondent asked Mr. Toussaint not to tell the applicant, because he wanted to surprise her with this trip. He added that he wanted to go there with the applicant to work on their marriage and asked if that would be a problem for Mr. Toussaint and his wife. When Mr. Toussaint expressed a concern about whether it was safe in Jamaica, the respondent said that he had done his research.

[24] When the respondent cross-examined Mr. Toussaint, he agreed that there had been discussions about the two couples taking a Christmas trip together even prior to the get-together at the Clayson/Martin home. At first, he agreed that initially the respondent had always wanted to bring the children on the trip. But then he said that the respondent had not said that he wanted to bring the children until they all got together at the Clayson/Martin home. The third time that he was asked about this, he answered that initially there was an agreement that the children would go on the trip, but later on the four of them as a group decided that only the adults would go.

[25] The respondent testified at some length about the lead-up to the December trip. In the fall of 2009, the applicant had said that she wanted just the two of them to go somewhere at Christmas. The respondent agreed that a trip would be nice, but he wanted them to take the kids. When it came to planning the trip at Christmas 2010, the applicant brought up the idea of going with the neighbours. He thought that would be okay, but he still wanted to bring the kids. During the get-together with the neighbours at their home, he “begrudgedly” agreed to leave the kids behind and to go to Mexico. A few days later, reflecting upon the matter, he decided that he still wanted to bring the kids and that he would prefer to go to the Caribbean instead of Mexico. He suggested to Mr. Toussaint that they go to Jamaica. Mr. Toussaint said that he would get back to him. Mr. Toussaint did get back to him to say that his wife did not want to go to Jamaica. The respondent then asked the applicant if it would be okay if he booked a trip for the two of them to Jamaica so that they could have time together. She agreed and he booked the trip.

[26] A limited number of questions were asked of the respondent in cross-examination about the planning for the trip to Jamaica. Many were rather irrelevant from my point of view; for example, whether he had bought a GPS for use there and to what extent he had researched where to go and what to do.

[27] The respondent called Ms. Pascal as one of his witnesses. She confirmed that in the fall of 2010, the two couples discussed going away together on vacation. She confirmed that the respondent had wanted to bring the children on the vacation, but that the others wanted just an adult vacation. She said that a number of destinations were discussed when the two couples got together at the Clayson/Martin home but that Mexico was pretty well the decided-upon place. About a month and one-half later, the respondent called her and said that he had booked a trip to Jamaica. He told her that he wanted to take the applicant on a trip alone to work on the marriage. He asked if it was okay with her that she and her husband would no longer be included, and he asked her not to tell the applicant that he had spoken to her (Ms. Pascal). Ms. Pascal denied any discussions with the respondent about alternative destinations in between the initial conversation and the respondent’s phone call, or any knowledge of that otherwise. Ms. Pascal testified that she encouraged the applicant to go on the trip to attempt to work on her marriage.

[28] All in all, the court heard an inordinate amount of evidence regarding whether the respondent went to Jamaica with the premeditated intent to kill the applicant. I have spent an inordinate amount of time examining the evidence in that regard. It is my considered view that neither individually nor collectively did this evidence either tend to prove or disprove such an intent. Its only possible relevance might be as to credibility.

[29] There was some evidence that perhaps might bear upon whether the respondent went to Jamaica with the intent to kill the applicant. That was the applicant’s evidence regarding the respondent’s jealousy, his accusations that the applicant was having an affair, the evidence that the respondent was adamant that he did not want a divorce and that he would not accept not having the children with him full time. That latter evidence was denied by the respondent.

[30] On the applicant’s evidence, she decided that she had to get away and seriously think about the marriage after the incident in the master bedroom in December 2008 when her hand was cut. Therefore, she decided to go away with a girlfriend on a trip to the Dominican Republic in January 2009. She said that she made arrangements with her sister and someone else to help with the children. She then told the respondent, at 4:00 pm the day before she was leaving, that she would be leaving the house at 3:00 am the next day. She did not give him any details as to where she was going. When, not unexpectedly, the respondent reacted with surprise and asked what was he supposed to do about child care (Kaiden was not in daycare and the respondent was supposed to return to teaching the following Monday) the applicant admitted in cross-examination that she said “You’re a smart guy, figure it out.”[^3]

[31] The parties exchanged text messages and spoke on the phone while the applicant was away. The applicant testified that the respondent said he would change, and so she came back from the Dominican Republic a couple of days early. However according to the applicant, nothing changed, and what she called “one-way conversations” about separating, which had started shortly after Kaiden’s birth, continued. The respondent became “fixated” on the possibility that the applicant would take the children away from him. According to the applicant, he “forbade” the possibility that he would be away from the children so much as even one or two days a week. She said that she could not count the number of times that he had said “Over my dead body will you take my children away.”

[32] The applicant became pregnant in late 2009. She decided upon an abortion rather than bring another child into “that situation”. She was adamant about terminating the pregnancy when she told the respondent about it in early 2010. In her words, “he did not dispute [her] decision”. When the respondent testified about this, he said that as a Catholic he was not happy with the applicant’s decision, but felt that it was her decision to make. In my view, it is worth noting that this possibly contentious issue produced no fight or argument of any kind.

[33] According to the applicant, the respondent first asked her if she was having an affair in May 2008, when Kaiden was three months old. Even after she “found her voice” and started asserting herself in 2010, the accusations that she was having an affair continued; in fact, on the applicant’s evidence, they increased.

[34] In March 2010, the applicant went to Miami with her sister and two girlfriends. On the applicant’s evidence, the respondent did not want her going there with just her one girlfriend who was single and divorced. He “agreed” that she could go if her sister went. After she got there, the respondent kept calling to check up on her to make sure that she was not out “fooling around”.

[35] In the summer of 2010, at one of Emma’s soccer games, the parties ran into Jason and Annette Hewitt, old friends of the applicant.[^4] While Emma and the Hewitt’s daughter did not play on the same team, they played at the same set of fields. The applicant testified that a couple of weeks later she got a call from Annette Hewitt who was very upset about a phone call that she had received from the respondent. Ms. Hewitt told the applicant that she had received a call from a man who said that he was calling on behalf of his brother-in-law, and that he had evidence that her husband was having an affair with his brother-in-law’s wife, Cathy Clayson. The man gave her some dates in July to check. When she refused to give him any information, the man hung up. Ms. Hewitt immediately called the applicant. When the applicant confronted the respondent about this phone call that evening, he denied having made it.

[36] Ms. Hewitt testified. She said that had received a call around the second week of August 2010 from a man accusing her husband of having an affair with the applicant. Ms. Hewitt immediately recognised the voice on the phone as that of the respondent. She confirmed that she then called the applicant, who, while she was listening, got the respondent on the phone. When being cross-examined, Ms. Hewitt insisted that she was able to recognise the respondent’s voice on the phone, even though she had not spoken to him between July 2004 and the spring of 2010, when they met at soccer. Except for meeting him briefly at the wedding shower in 2004, greeting him in the reception line at the wedding in 2004, and chatting with him briefly once at the soccer fields in the spring of 2010, Ms. Hewitt had never spoken to the respondent. She had never previously spoken to him on the phone.

[37] Whether it was or was not the respondent who called Ms. Hewitt, when the applicant confronted him that evening and he denied that it was him (which he did as well when he gave evidence), the applicant decided that that was the “last straw”. She became more determined than ever to leave the marriage.

[38] The applicant testified that things became even worse in late 2010. According to her, the respondent became angry because “he could no longer control her”. He made further accusations that she was having an affair. By November, the applicant and the respondent were having serious discussions about separating, including after the Jamaica trip was booked.

[39] The respondent spent relatively little time cross-examining the applicant on the allegations that she made against him with respect to his accusations of adultery and his views regarding a possible separation and divorce.

[40] From the respondent’s point of view, financial issues were the main source of friction between them. He asked many questions relating to the financial pressures on the family, his view that the applicant was spending too much money on herself, and that she used the joint account for personal expenses when it was supposed to be for the purpose of family expenses.[^5] The applicant agreed that she had used the joint account for some personal expenses, but not that she misused it. However, she admitted that there were many arguments about her using the joint account for her personal expenses, and that the respondent became upset with her many times for using the joint VISA for personal expenses. She agreed that at times all of their credit cards were “maxed out”. The applicant also agreed that there were considerable financial pressures on the family. As a consequence of that, they had discussed the possibility of selling their house and moving to cheaper accommodation further east. According to the respondent they had even made an offer on another house.

[41] When he gave evidence, the respondent denied making the phone call to Ms. Hewitt. He said that when he and the applicant talked about the phone call that evening at home, he asked the applicant if she was in fact having an affair with Mr. Hewitt. Even though she seemed nervous when she denied it, he left it at that.

[42] The respondent testified at length about the financial problems that the family experienced. These financial difficulties were exacerbated when the applicant would use the joint bank account for her own personal expenses. This was not in keeping with their agreement and caused many arguments.

Jamaica up to December 23, 2010

[43] The parties arrived in Jamaica on December 18, 2010. When the applicant testified in chief, she painted a picture of remoteness and minimal interaction. She said that their interaction was very distant. They ate in silence. While they did a few things together, mainly she sat on the beach alone, while the respondent went off and did activities. She refused to go on a drive with the respondent one day when it was raining. A few hours later, she refused to go with the respondent to Negril. In her application, the applicant said in paragraph 25 “[They] hardly spoke to each other the entire week and spent most of [their] vacation doing separate activities.” On Wednesday, December 22, 2010, they went to bed early. The respondent got up in the night and vomited. The next day, they left the hotel shortly before noon to catch their 3:30 pm flight.

[44] When she was cross-examined, the applicant started off answering that she did not enjoy the time at the resort; that they were almost like two strangers; and that the respondent was very distant with her. However, when she answered specific questions, the picture changed entirely. She agreed that they did go to the beach together every day; that they ate almost all of their meals together; that they went for walks together along the beach; that they went swimming together; that they marvelled together about how beautiful the resort was; that they went on an excursion to Dunn’s River Falls with another couple in the rented car and that she had fun there; that they went to the disco at the resort one night and danced; that they played beach volleyball together; that they shared a lot of laughs together with the bartenders at the pool swim-up bar; that they went out together ocean kayaking; and that they drove together to the “Hip Strip” in St. Anne’s Parish where they went shopping. At the end of this portion of the cross-examination, the applicant agreed that they had had a good trip together up until they left the resort on December 23, 2010.

[45] The respondent gave evidence regarding all of the above joint activities and spoke of how they were intimate the first night there. The applicant herself had testified about this and how this had surprised her.

December 23, 2010

[46] No matter whether the respondent went to Jamaica intending to kill the applicant, or whether he had motive to do so, it is the events of the afternoon of December 23, 2010, and what followed the next day, that are most important.

Evidence in Common

[47] The respondent testified that when they were on the beach one day he pointed out a place where the land jutted out next to the resort, from where it would be nice to take a picture of the resort. They saw that point of land again when they were out kayaking and he mentioned it again to the applicant. The applicant agreed with that evidence.

[48] Before they left the resort on December 23, 2010, the respondent reminded the applicant that he wanted to go to that place that they had seen to take some pictures. Therefore when they left the resort just after noon, it was with the intention to first drive to that point. The respondent drove east on Highway A1, in the opposite direction from the airport. They drove for a few minutes and then turned left onto a road leading north towards the coast.[^6] Up to this point, the parties’ stories are the same, although the respondent testified that he was not sure where to turn, so the applicant, who was becoming impatient, said something like “just turn here”. The respondent missed that turn, so he turned onto the next road. The applicant testified that she did want to turn earlier than they did, but the respondent on his own drove to the next road.

[49] The applicant was anxious and nervous because they were on an isolated road; one that she thought was too far from the main road. She said it was dangerous, so she asked the respondent to turn the car around, which he did. (The car was then facing west and would have been driving on the north side of the road.) The respondent then pulled over and stopped. The applicant said to forget about taking pictures, that it was too dangerous, and that they should just leave. Both agree that the applicant refused to get out of the car when asked and that she insisted that he give her the keys so that she could drive for help if something happened to him. The applicant, who was sitting in the front passenger seat (which was on the left, because in Jamaica one drives on the left) then locked her door. The respondent got out of the car. The parties’ versions of what happened up to here are very similar, and on some points, pretty well identical.

The Applicant’s Evidence in Chief

[50] From here on, the parties’ stories diverge, although at various points they re-converge in ways at times interesting and puzzling. The narrative both in examination-in-chief and in cross-examination was quite detailed.

[51] According to the applicant, while she was sitting in the front passenger seat she heard the left rear passenger door open and then the knapsack, where she understood that the camera was, being unzipped. Then she felt a sting on her neck. She looked to the left and saw the respondent’s face; he was holding a knife up close to his face. (Although it was a bit unclear, at another point in her testimony, the applicant seemed to say that she saw this in the mirror.) The second that she saw the knife she grabbed her throat. As she grabbed her throat the knife came at her again, and he “got” her left thumb.

[52] She then immediately jumped over to the front driver’s side. As she was moving across, she reached behind and locked the two rear doors. She then locked the front driver’s side door and tried to start the car, even though she was shaking. As she was trying to start the car, she heard the hatch opening up and the respondent entering the car from the rear, so she jumped out of the car and started running down the road screaming. She could hear him behind her. He eventually caught up with her. He grabbed her and lifted her off the ground and carried her back to the car, holding her tight. He tried the back passenger door but it was locked. He then tried the front passenger door but it too was locked. He then put her into the car through the driver’s door and came in with her. She was sitting on his lap. He put her in a choke hold, and started strangling her. She could feel her airways tightening and tightening. She could hardly breathe. She urinated on him. She thought that she was going to die, but then the respondent suddenly released her and pushed her onto the front passenger seat.

[53] The respondent then started the car. The applicant was hysterical. She was asking him what he had done. Either she grabbed her “white hoodie” from the back seat, or the respondent gave it to her, and she put it around her neck.[^7] They drove down the road slowly. She kept asking him why he did this to her; all that he said to her was “because [she] had fucked Jason Hewitt”. She said that he had that all wrong and that she had never cheated on him.

[54] She asked him to get her some help. She said that she “might be a bitch of a wife sometimes, but [she is] a good mother to those babies”, and that “the babies needed their mother.” She added that she would say anything (regarding what had happened), and that they could blame it on a Jamaican and say that they had been robbed. All she wanted was that he get her to a hospital. She said “[We] could make it okay.” The respondent did not reply.

[55] The respondent drove slowly on Flamingo Beach Road and then onto the road that would take them to the main highway. The applicant noticed a man on the corner by the side of the highway. So she rolled down the window and screamed. The respondent rolled it up again from his side, so she honked the horn several times. The respondent then grabbed her wrists and held on tightly. She then said that she would calm herself down and be quiet, if he would just get her to the hospital.

[56] The respondent turned right and drove east on the highway for seven to nine minutes. There were lots of cars on the highway, and since they did not know where the hospital was, the applicant suggested stopping to ask. Then at a corner where she saw a blue sign with a W on it, the respondent pulled off on another road. To the applicant, it appeared to be isolated. The respondent, still holding onto the applicant’s wrists, kept driving and slowing down. The applicant thought that the respondent was going to finish her off, so she started pleading with him. She said that she loved him and he loved her, that he should hold her hand and not let her die. The respondent did not look at her and said nothing.

[57] The road that they were on fed into the main highway, where the respondent turned left to go back west again. The applicant opened the left front passenger door and kicked her legs out. She wanted to get attention. She did that repeatedly. Then she decided to cause an accident, so she grabbed the steering wheel and jerked it. That caused the respondent to let go of her wrists. The applicant then immediately jumped from the moving car. She landed on her hands and knees. The respondent just kept going and took off.

[58] The applicant looked up and saw a man, whom we later learned was Huntley Russell, standing there.[^8] Mr. Russell brought her to her knees. She asked Mr. Russell to get her to a hospital. Mr. Russell lifted her up and was going to put her into the back of his pickup truck, but the applicant said that she was not getting in there. She then looked to her right and saw a cab with a driver and two lady passengers.[^9] She asked the cab driver to get her to the hospital. She got in the front passenger seat. The cab driver gave her something to wrap around her neck. She pleaded again for him to take her to the hospital. She gave him her name and told him that her husband, whom she named, had “done this to her”. She gave the passports to two ladies in the back.[^10] The cab driver, who never testified herein, then drove her to the hospital in Fallmouth. Based on the various maps and images presented in evidence, and the evidence of Detective Sangster and the respondent as to certain distances, I would estimate that it was probably a drive of five to six minutes at most.

[59] When the applicant arrived at the hospital she was seen by a Dr. Karma who attended to her wounds. On the second day of the trial, counsel sought to admit a medical certificate by Dr. Karma dated December 28, 2010. The one page certificate/report was sworn before a justice of the peace and served upon the respondent on December 28, 2010. Because counsel for the applicant was unable to locate or contact Dr. Karma, she made a forceful argument that his report should become evidence using the principled approach to the rules respecting the admissibility of hearsay of evidence. I ultimately agreed with her and allowed the report to become exhibit 8.

[60] The applicant was shown some photographs taken on Flamingo Beach Road by her sister and by the Jamaican police. She identified the first one as showing the spot where her flip flops came off, which was where the respondent caught up with her after she tried to escape. Unfortunately, one cannot tell from the photo where that is in relation to what appears in the other photos, and the applicant did not testify about that. The second photo shows four individuals, including the applicant, standing on “the isolated road where Paul took [her]”. The third photo shows a house in the background. One can see three numbered yellow police identification markers on the north side of the road just in front of some bags of garbage. The applicant later said that those marked where the car had been parked, which means that the car was parked not far from the house with the red roof which ones sees in the next photo. The fourth one shows a house with a red roof reasonably close to the road.[^11] This photo too shows the yellow police identification markers, but this time they are on the other side of the bags of garbage, because the photo is taken from the direction. The fifth photo was taken by her sister to show how close the ocean was to the road; however, the applicant qualified that this was not the spot where the respondent stopped to take photographs, as the spot where he stopped had dense bush. That qualification was not surprising since the fourth photograph shows a clear path to the beach, which is quite close to the road.[^12] The fifth photo shows some red stains on the pavement. The applicant said that it was her blood at the point where the respondent attacked her. The remaining four photographs were taken by the police.

The Cross-Examination of the Applicant

[61] The cross-examination by the respondent with respect to what happened on Flamingo Beach Road, up to when the applicant jumped out of the car, was fairly lengthy. I will not set out herein those answers that merely confirmed her testimony in chief or those matters concerning which the applicant merely denied the suggestions put to her by the respondent, except if I consider them important to my decision.

[62] Although the applicant agreed that she was nervous about Jamaica in the first place because friends and clients had warned her about how dangerous it was, she denied that she had herself packed a knife for self-protection.

[63] While the applicant denied that she had suggested that they say that they had been “car-jacked”, she did agree that she had said that she would say anything when she asked the respondent to take her to the hospital. She agreed that it was her suggestion that they could say that they had been robbed.

[64] The applicant denied that the respondent asked her what she had done with the knife or that he had asked her to look for it in her bag.

[65] The applicant agreed that she had not disclosed to the authorities in Jamaica that she had urinated on the respondent. She said that she could not recall whether she had ever testified about that at the preliminary hearing or at the criminal trial, or whether she had ever included that in either of her formal statements.

[66] The applicant confirmed that when she looked to her left after feeling the sting to her neck, she saw the respondent. She could not recall whether he was holding the knife in his right hand or his left hand.

[67] The applicant agreed that the distance to the highway, from the place where the respondent had started to drive after the incident, was pretty short. She declined to estimate the distance. She could not recall how long it took to get to the highway. She disagreed that the respondent drove away speedily, or that he drove away fast because he said that they needed to get to a hospital. She denied that the respondent explained to her that he was trying to find a hospital. She agreed that the respondent was driving very fast on the highway.

[68] The applicant was then challenged with various answers that she had given to questions posed to her by the respondent’s counsel at the trial in Jamaica. From those questions and answers, it is apparent that the applicant had likewise denied in chief during the criminal trial that the respondent had said that he was taking her to the hospital. However in her cross-examination by the respondent’s counsel, she admitted that her written statement given to a female police officer at the hospital contained the following words: “I kept crying and asking Paul to take me to the hospital and he said that was what he was doing ….” As well, she admitted that she had signed every one of the eight pages of that statement, and that at the end she had signed that it was true to the best of her knowledge and belief. When confronted by counsel at the criminal trial with those words in her statement, the applicant said: “It does not make sense to me”. She went on to agree with counsel that it did not make sense within the context of her story about the respondent trying to kill her.

[69] After the applicant admitted that those were her answers at the criminal trial, the respondent asked her whether when they were driving, he had said that he was taking her to the hospital. Her answer was that she did not recall.

[70] Later on in her cross-examination at the criminal trial, the applicant said that the respondent drove speedily down the road, after he pushed her into the passenger seat. After being challenged with that answer given at the criminal trial, the applicant admitted that that answer was completely contradictory to her testimony herein, both in chief, and to what she said earlier in cross.

[71] The applicant agreed that after feeling the sting on her neck, she turned around and saw the respondent in the back seat. That led to a disagreement between the applicant and the respondent as to what she had said in chief regarding the position of her left hand when her thumb was cut. It proved necessary to play back the recording of her earlier testimony where she talked about this issue. The question put to her by her counsel was: “And then you said that you put your hand on your neck”. The applicant answered: “And that’s when I went to put my hand on my throat and that’s when he came and got me again; he got my thumb.” After a discussion about possibly listening to more of the prior testimony, the respondent decided to refer instead to what the applicant had said at the criminal trial.

[72] At the criminal trial, the applicant demonstrated how she had locked the back doors, using her left hand, when sitting in the front driver’s seat. Then immediately after she gave two similar answers to questions regarding the issue of where her hand was when her thumb got cut. 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”.

[73] When she was first asked in cross herein about where she was when she locked the back doors, the applicant repeated her evidence in chief that she did so while moving across. Then she said that she could not recall whether it was when she was sitting in the front driver’s seat or moving across. As I set out above, her evidence in Jamaica was that she did so when sitting in the front driver’s seat.

[74] At the request of counsel for the applicant, two more questions and answers given by the applicant at the criminal trial were read to her. The gist of these two answers was that the applicant had had to stretch over into the back of the car to lock the doors and that at least the upper portion of her body would have had to have gone into the back seat area.

[75] The applicant agreed in cross-examination herein that it was probable, given that she was bleeding profusely and that she had been holding her neck with her left hand when she reached into the back of the car to lock the doors, that some blood would have dripped into that back seat area.

[76] As part of her case in chief, the applicant presented a picture of a wicked looking knife which she said resembled the knife that the respondent had used to try to kill her.[^13] She said that she had searched on the internet to find something similar. Other than the colour, she said it resembled the knife as she remembered it. But when she was asked in cross whether she had a pretty clear idea of what the knife looked like, she said “no”. When she was asked about the apparent contradictions in her evidence, she went on to describe the similarities and differences. As far as I could tell from her answers, the only difference was the colour.

[77] When asked by the respondent in cross-examination, the applicant first said that she could not recall whether a knife had been entered into evidence at the criminal trial. She was then cross-examined with respect to an answer that she had given during the criminal trial, when she was asked if she had ever seen the knife that the respondent had used to attack her, since going to the hospital. Her answer was “Yes” and that “They (Detective Sangster) showed it to me at the courthouse.” At first, the applicant denied that the questions and answers read out to her from the transcript from the criminal trial were accurate. When I asked her about this later, she confirmed that she was saying that the transcript was wrong. At that point, her counsel would not agree that the transcript was necessarily accurate.

[78] While counsel and I were discussing what to do since the applicant was denying the accuracy of the transcript, the applicant interjected to say “Maybe I remember the question being posed to me, or what I heard the question be in the Jamaican trial, and reflected on, versus what’s on here; because I remember that trial, in quite detail.” After that rather confusing remark, counsel for the applicant continued to decline to admit the accuracy of the transcript. That was followed by a lengthy discussion about whether the court could accept the accuracy of the transcripts pursuant to either the Ontario Evidence Act, or some principle of common law. No final determination was made at that point.

[79] When in re-examination, the applicant was given the opportunity to say whether what was in the transcript was accurate, she said that she believed that she had been asked whether she had ever seen a (my emphasis) knife again. When she answered yes, she was referring to a Swiss Army knife that had been found on the respondent and then shown to her by Detective Sangster. As I was still confused as to what exactly the applicant was saying about her answers in the criminal trial on this point, I asked the applicant at the end whether she was saying that she had misheard the question, or whether the transcript was wrong. She finally clarified that she had misheard the question.

[80] At the criminal trial, the applicant testified that the car was travelling at about 50 kilometres per hour when she jumped out of it. She agreed that 50 kilometres per hour is a moderate rate of speed. She agreed that when she gave her statement to the police, she had said that the car was travelling very fast when she jumped from it.

[81] The applicant was cross-examined with respect to her injuries suffered as a result of allegedly jumping out of the car when it was driving very fast. She replied that her elbows were scraped completely raw, and that her knees and her wrists were sore. She agreed that there was no medical report in Jamaica specific to those alleged injuries. Her explanation for that was that the greatest concern and attention was to her throat and thumb.

The Respondent’s Evidence in Chief

[82] The respondent’s account of what happened on December 23, 2010, after he turned around the car on Flamingo Beach Road at the applicant’s request, was not surprisingly, very different from the applicant’s.

[83] The respondent testified that after he turned the car around and was driving the car back west, he saw a little clearing in the bushes where they could access the beach.[^14] He therefore pulled over and stopped. He invited the applicant to get out with him to take pictures, but she refused. Although he was disappointed, he decided that he would get out and take some pictures even if the applicant would not participate.

[84] He told the applicant that she was being difficult. They started to argue and the argument got more and more heated. The respondent decided to argue back in a “strong” way, so he started criticising the applicant. That upset her further; she began to hurl insults and obscenities at him. The respondent countered by criticising the applicant’s parenting, which further escalated the applicant’s anger.

[85] The respondent decided that he needed to get away from the applicant, so he got out of the car and walked to the rear. Shortly after, the applicant got out of the car and walked around to the front. To the respondent, the applicant appeared to be enraged. The respondent saw a knife in the applicant’s left hand. He asked her what she was doing; he yelled at her to stop and backed up. He backed up around the other side of the car trying to get away from her. The applicant “plunged” the knife at him; he grabbed her hand. They struggled; they bumped into the car. He backed up again and the applicant followed, coming at him with the knife. The respondent grabbed her hand again at the back right corner of the car. He pushed her hands away from him. The respondent testified that he believed that it was then that the applicant was cut on the neck. All the while the respondent had been telling her to stop, which she did after getting cut on the neck.

[86] When the respondent realised that the applicant was cut, he said “let’s get in the car and go”. Because she would not move, he picked her up in a bear-hug, carried her to the front right of the car, opened the door, and got into the car with her. She was sitting partially on him. He denied that the applicant urinated on him. He said that they needed to go get her some help. He helped her over the centre console. He saw her sweater, grabbed it, put it to her neck, and told her to put pressure on it. He then immediately started the car and “hammered the gas” to get out of there.

[87] When he got to the highway, he went with oncoming traffic to the left (the east). He drove very fast while holding the applicant’s hand and reassuring her that he would get her to a hospital. The applicant was crying and asking to be taken to the hospital which he said he was doing. He asked why she did what she did, but when she would not respond, he left it at that. He was travelling at least 100 kilometres an hour, all the while looking for a hospital sign.

[88] The respondent said to the applicant that when they got to the hospital, they would need to explain what had happened, especially if the police got involved. He was assuming that the applicant would get medical attention and that they could fly home to Canada later that day or the next morning. The applicant did not want to tell the truth regarding what had happened. The respondent was concerned about that. He repeated that they needed to tell the truth. That was when the applicant suggested that they say that they had been robbed. When he said no, she suggested saying that they had been attacked by a crazy Jamaican man. He said no to that suggestion as well. But when the applicant became more upset, he agreed to say that they had been robbed.

[89] While driving east on the highway, the respondent had not seen a blue hospital sign. But then he saw a blue sign, so he turned right at the intersection. (We learned later that this was the old road to Retreat Heights, or Burwood Road.) Once on that road, he noticed that it was very rural and deserted, and realised that there could not be a hospital there. He slowed down to think. He asked the applicant what she had done with the knife, because he was concerned that if she was found with the knife, it would have her fingerprints on it. He asked her to check in her bag for the knife.

[90] The road came to the main highway again. Once again, he turned with the traffic, to the left this time. They were now going back west. The applicant started to fight with him again. She grabbed the steering wheel. The car was swerving all over the place. Because this was dangerous, part way up the highway, he pulled over to the left. The applicant then stepped out. He asked her what she was doing and to get back in. She did not get back in; she was crying and screaming. He then said to wait there while he went to get help. He drove off very quickly.

[91] After driving down the highway and not seeing any place where he could get help, the respondent decided that he had done a stupid thing leaving the applicant by the side of the road, so he pulled over, waited for the traffic to die down, pulled a U-turn, and then drove back east. When he got to the place where the applicant had got out of the car, to his shock she was not there. He panicked. He was not sure what to do. He kept driving east. He decided to find the nearest house and to call 911. He looked to his left and saw a road and homes there immediately off the highway. He pulled over in front of the first house and started yelling for help. A man in the yard came over and asked what the problem was. The respondent said that he needed to call 911 and asked him to do that and to call the police. Shortly after, Corporal Swaby arrived.

[92] The respondent could not remember everything that he said to Corporal Swaby, but because he had agreed to tell a story about being robbed, he did tell him that. Someone arranged for the respondent to call the hospital, which he did. He was told that his wife was there and was okay. He went with the police to the hospital.

[93] Upon arriving at the hospital, he sensed that the police were angry with him. His cell phone was taken away and he was not allowed to see the applicant. He saw a doctor who treated him for a contusion on his forehead. He had scratches, cuts, or bruises to the tops of his hands. After seeing the doctor, the respondent was partially restrained by a policeman and taken to the police station.

[94] At the police station, the respondent met with Detective Sangster and was asked to give a statement. That statement, which was hand-written by Detective Sangster, became exhibit 35 at this trial. The respondent said that the detective wrote it, dictated it, and had him sign it. The statement, as it relates to what happened on Flamingo Beach Road, was, as we know, almost a complete fabrication.

[95] Detective Sangster gave evidence at this trial via Skype from Jamaica. He denied knowing before the interview at the police station that the applicant was accusing the respondent of having tried to kill her by slashing her throat. This is simply not credible. Detective Sangster admitted that he had spoken to the cab driver and his two passengers at the hospital. Additionally, Corporal Swaby testified that when he arrived at the hospital with the respondent, it was swarming with police and he was informed that the respondent had tried to kill his wife. He said that he had been sent to arrest the respondent in the first place. He said that Detective Sangster was the one who had the information that the respondent was the person who had tried to kill his wife. It is quite probable that Detective Sangster was giving the respondent enough rope in the hope and belief that he would hang himself. This blatant falsehood by Detective Sangster calls into question the reliability of all of his evidence.

[96] After the respondent gave his statement, the police took his clothes and then handcuffed him to a wooden bench. He was there for many hours, and then he was taken to a jail and locked up for the night. A Swiss Army knife was removed from his pocket when he arrived. The next day, he was formally charged with attempted murder and interviewed a second time by Detective Sangster. It is evident from the questions asked on that occasion, that the detective had been well informed by the applicant about her version of everything, going back to early 2010. What is perhaps the only relevant question among those relating to the background of the trip to Jamaica, was one which suggested that the respondent had deliberately not brought the children on the trip because he intended to kill his wife. As the court knows from the evidence of the parties themselves, and the neighbours, it was in fact the respondent’s desire to take the children and it was the applicant who opposed that. On the advice of his lawyer, the respondent refused to answer any of the obvious questions that might incriminate him. From what the respondent said later in his cross-examination, he had consulted with duty counsel that morning who had advised him to say nothing that might incriminate him. That duty counsel eventually became one of the lawyers who represented him at the criminal trial.

[97] After the second interview on December 24, 2010, the respondent was taken back to jail, where he was held in detention for over four months before being released on bail. The criminal trial took place from November 7, 2011, to November 22, 2011. The respondent was acquitted on all charges.

The Cross-Examination of the Respondent

[98] The respondent was cross-examined at some considerable length regarding the events of December 23, 2010. The cross-examination started with what the respondent told Detective Sangster on that day. The focus was on why the respondent had not told the “truth” to the detective that day, even though it was the perfect opportunity to do so. Counsel never directly asked why the respondent had chosen not to tell the truth that day. That was followed by questions relating to several further opportunities he had had in Jamaica to tell the truth between December 23, 2010, and the criminal trial in November 2011, including at the preliminary inquiry.

[99] Both at the beginning of the cross-examination, and later on, counsel spent some time suggesting to the respondent that he had embellished or exaggerated his story over time in order to make it more believable. The respondent agreed that he may have added more details – he was not quite sure – but he repeatedly denied exaggerating in his evidence before me.

[100] The respondent agreed that he had intentionally lied to two different police officers on December 23, 2010 - Corporal Swaby and Detective Sangster. Again, he was not asked why.

[101] The respondent agreed that he had never, during the over four months that he was held in detention, gone to the Crown prosecutor, the police, or any governmental authority to say that he had made a false statement. He agreed that he knew that an innocent person could possibly have been investigated, charged, and jailed. The respondent did say that he had told someone the truth during that time – his criminal lawyer in Jamaica. He went on to say that he was acting on his lawyers’ instructions to not tell the truth until the criminal trial. Any witness can of course, say that the reason that he did or said something was as a result of what someone else said. As long as it is not proffered for the truth of what the other person said, it is not hearsay. That opens the opportunity for that other person to be cross-examined as to what was said – assuming that it is not collateral. However, since the respondent was not prepared to waive solicitor-client privilege, it then put counsel for the applicant in an impossible position.

[102] Notwithstanding the exchange relating to solicitor client privilege, counsel for the applicant then went on to ask the respondent why he had not told the truth at the preliminary inquiry (which was apparently held only four days after the respondent was arrested) especially after the applicant gave her evidence that he had slashed her throat. Putting aside the fact that it would be very rare indeed for an accused to testify at a preliminary inquiry, the question obviously invited another answer based on instructions from criminal counsel.[^15]

[103] After some further questions along this line, counsel moved on to the issue of the contempt allegations, to which I will turn later, and then returned to the events of December 23, 2010. To start with, counsel had the respondent agree as to the locations where various things occurred and the route that the car drove on that day. After the respondent disagreed with the applicant’s evidence regarding how often and how much he slowed down on Burwood Road, counsel then spent a great deal of time asking questions about the respondent’s injuries to his head and his hands, allegedly due to actions of the applicant on December 23, 2010. She reviewed his medical certificate from the hospital on that day, which set out the respondent’s observed injuries and the opinion that “these injuries were consistent with infliction with a blunt object”. Many questions were asked about the proper definitions of the words “cut” and “wound”, and the use by the respondent of those words and the words “scratches”, “bruising”, and “defensive wounds” in his pleadings, in an affidavit, and at a meeting at the Durham Catholic School Board. Counsel returned to this again the next day. Other than serving to demonstrate that the respondent may have slightly exaggerated the extent of his injuries, this lengthy line of questioning produced nothing of relevance.

[104] When the cross-examination continued the next day, counsel returned to what the respondent had told Corporal Swaby and Detective Sangster on December 23, 2010.

[105] The respondent was unsure of the details of what he had told Corporal Swaby, but agreed that the essence of what he had said was that they had been robbed by a Jamaican man, who had cut his wife’s throat. As far as I am concerned, this portion of the cross-examination produced nothing of further relevance.

[106] Counsel then proceeded to go through exhibit 35, the statement taken by Detective Sangster on December 23, 2010, on a paragraph by paragraph basis. The respondent once again disagreed that the “story” set out therein came entirely from him. It was his evidence that he was of the impression that the detective already had a narrative from interviewing many people. There were several times when the respondent answered that he could not recall whether he had told the detective a certain detail as opposed to the detective supplying the detail. He said quite often that “[he didn’t] think that [he] said that to [Detective Sangster].” He agreed that, with the detective’s prompting, he had made up a description of the supposed robber. He denied saying a fair number of things set out in the statement, including that he grabbed the knife that the robber had used to cut his wife’s throat and threw it away and that he got into a fist fight with the robber. As the cross-examination proceeded, there was some back-sliding by the respondent as to what he said, or did not say, to Detective Sangster. He answered several times that it was quite possible that “[he] told him that”. In the main however, the respondent held to his view that much of the contents of the statement did not come from him.

[107] The respondent was asked about having a red Swiss Army knife in his possession when he was processed at the jail. Although there seemed to be some confusion about the date, the respondent readily admitted that he had such a knife with him, and that it was a four to five inch long, multi-purpose pocket knife. That led to the suggestion that he would not have had that knife in his possession if he had truly intended to go to the airport that day. The respondent admitted that he should have packed it in his bag and that not doing so was a mistake, but he also said that he took it every time that he went on an excursion because it is useful. It was natural for him to put it in his pocket at the hotel. He presumed that he did so out of habit. He had owned it for decades.

[108] The respondent was extensively cross-examined regarding when he began to believe that the applicant had committed adultery; with whom; when he confronted the applicant with his belief; whether or not he believed that the applicant truly wanted to separate; why he believed what he believed; when that belief came to him; and whether or not he believed, or understood, that she was in fact going to separate from him early in the New Year 2011.

[109] The respondent was cross-examined with respect to what he had said in chief, what he had said when questioned pursuant to rule 20 of the Family Law Rules; what he had said to the applicant’s sister; what he had told Dr. Jaffe; and what he had told Dr. Bloom. It would take far too many pages to set out everything asked and answered. I will deal with some things specifically, and others in a more general fashion.

[110] The respondent admitted that he had suspicions in 2009 that the applicant was having an affair, and that he had told this to Dr. Bloom when interviewed for his assessment. However, he did not recall saying this to the applicant. When he was shown exhibit 1, he admitted that he may have accused her of having an affair in 2009, but not as early as 2008. The respondent was asked a number of questions regarding if and when he had accused the applicant of having an affair with Jason Hewitt. After waffling with his answers, he was faced with paragraph 54 of his answer/claim dated December 9, 2011, where he wrote “The applicant eventually attended a few of Emma’s games in 2010, after which she began having an extra-marital relationship with one of the parents on another team.” The respondent admitted that he was referring therein to Jason Hewitt. He also agreed that when Detective Sangster asked him on December 24, 2010, whether he had ever accused his wife of having an affair with Jason Hewitt, he answered “yes”.

[111] The respondent again waffled somewhat regarding his belief about a possible separation that might occur in January 2011, or earlier. The respondent said that the applicant had threatened to leave him many times, going back to shortly after Emma’s birth, but he never took it entirely seriously. This occurred when they were arguing. Even when she sent him an email on December 1, 2010, in which she wrote “… and truly Paul This is not working – we are not working and I don’t know what we are going to do come the new year.” he hoped that they could work things out. He did not really believe that they would separate. He told Dr. Bloom that he had no real expectation that there would be a separation. He admitted that he did not want to separate. He felt it was important for the children to be in an intact family. He believes that divorce is difficult for children.

[112] Sentence by sentence, counsel read in the last paragraph starting on page 6 of Dr. Jaffe’s report dated January 22, 2013.[^16] Other than some mutual duelling between counsel and the respondent over what could be inferred from this paragraph, nothing new arose therefrom.

[113] The respondent was likewise extensively cross-examined with respect to his evidence as to how the applicant was cut on December 23, 2010, and especially how he had allegedly embellished and exaggerated his version of the story as time went by. I can say with complete comfort that the respondent did give greater details at the trial in his evidence in chief than he did previously. He admitted that. What he never admitted was that he had tailored his evidence to match what he had told Dr. Bloom, or that he had done so to convince this court that he had been attacked by the applicant and not vice versa.

[114] The respondent was cross-examined with respect to what I will call the physical aspects of his version of the incident at the car. This started with how big and strong the respondent was at the time, relative to the applicant. The gist of these questions was an attempt to demonstrate how the respondent could have easily disarmed the applicant if she had truly attacked him with a knife. When he testified, the respondent had used the same physical difference to make the opposite point - that if he had attacked the applicant as alleged by her, he would have sliced her throat very deeply and killed her with one stroke. That was followed by a significant number of questions relating to the movements by the parties around the car. Although counsel tried to get the respondent to admit that he was lying, and that he had added all sorts of details in chief and in cross to embellish his story to make it more believable, in the end that result was not achieved. I myself would have to be an expert in kinetics, and possibly physics and other fields, to conclude that the respondent’s version of events was impossible or even unlikely.

[115] I have listened to the recording of every question asked by counsel on this issue. Without exception, they were all of a general nature along the lines of “You could have overpowered her” and “You could have put two arms around her and thrown her to the ground”. Although she got the respondent to admit that he tried to disarm the applicant, and that he was unable to disarm the applicant, she never asked the respondent why he was unable to do so, given his greater strength.

[116] After asking several non-pertinent questions about such things as the possible purchase by the respondent of a GPS system, and whether he bought a new watch just before leaving for Jamaica, counsel returned to what the respondent had told Detective Sangster about the incident at the car. The respondent confirmed what he had said in his unsworn dock statement in the criminal trial, that his lie about being attacked by a Jamaican robber was to protect his wife. He said that when he gave that false statement, he did not know exactly what the applicant may have told the police already, although he said that it had crossed his mind that she was blaming him. He had an “eerie feeling” that something was wrong.

[117] The last area of questioning relating to what happened before the applicant exited the car on Highway A1, dealt with the drive from Flamingo Beach Road to that spot. The respondent was adamant that he left Flamingo Beach Road in search of a hospital. He said that he had measured the distance on either Google or Map Quest and determined it to be 15 kilometers in total. He agreed that he never stopped anywhere to ask for directions or help. He was shown exhibit 37, a series of photos produced during the examination-in-chief of Detective Sangster.

Other Witnesses

[118] There were a number of other witnesses who gave evidence possibly relevant to what had happened in Jamaica on December 23, 2010. I include Detective Sangster, Corporal Swaby, Huntley Russell, June Warren, Dr. Pickup, Dr. Jaffe, and Dr. Bloom. Detective Sangster, Corporal Swaby, Huntley Russell, and June Warren all testified via Skype. In addition, the court accepted that the evidence of Ms. Sherron Brydson given at the criminal trial could become evidence herein. That prompted the applicant to call a reply expert, Valerie Blackmore.

Detective Sangster

[119] Detective Sangster was the officer in charge of the investigation of the incident on December 23, 2010. As I said above in paragraph [94], he was the one who took the respondent’s statements on that day and again on the next day. He described meeting the applicant and other persons when he arrived at the hospital on December 23, 2010, after being directed to attend there. He also saw the respondent there, and again about one half hour after at the Falmouth police station. That is where he took the statement previously identified. When asked about the process which resulted in the statement, the detective said that after the respondent accompanied him to the station (which we know was incorrect) he voluntarily dictated what had happened. When asked what he meant by the word dictated, he answered that he meant that the respondent had told him a story. He said that the words in the statement were the respondent’s words and not his. When he was asked about any injuries to the respondent, he said that he had seen a bruise on his forehead but did not notice anything about his hands. Notwithstanding that he had earlier said that he had met the applicant and others at the hospital before interviewing the respondent at the police station, Detective Sangster said that he had not met or interviewed the applicant before taking the statement on December 23, 2010.

[120] The second interview came about after the detective interviewed the applicant at the hospital on the evening of December 23, 2010. Detective Sangster referred to the respondent as being only a suspect as of December 24, 2010. It is hard to credit that, given Corporal Swaby’s later evidence, given that the respondent had been held in jail overnight, and given that the statement taken on that day starts out with a declaration that the respondent had been taken into custody for “attempt murder”, which is followed by a formal caution. Although there is nothing in the written statement taken on December 24, 2010, Detective Sangster said that after the respondent was formally cautioned, he said “We were attacked.” It would seem odd that this alleged remark was not recorded in any fashion.

[121] The detective met with the applicant again at the hospital on December 24, 2010. She then accompanied him to the hotel where the parties had stayed and then to the Flamingo Beach Road area. He described it as having shrubs along the roadway as it was “not being used so frequently”. There were a few large houses starting to be erected, with a large fenced perimeter, also fenced at the entrance, and a few other houses, “sort of gated”. They reached the place where the applicant said the incident had happened by being “guided by a building” and by the applicant. Detective Sangster was asked to look at the photographs taken that same day by her sister Michelle Iervasi, and at some additional ones. Detective Sangster’s evidence was all of the photographs were taken by his scene-of-crime person. It is clear that the scene-of-crime person did take the photos of the blood stains, and the ones with the numbered yellow police identification markers. When Detective Sangster testified that his scene-of-crime person had taken all of the photos, he was clearly mistaken. This is probably unimportant, except to show that, not unsurprisingly, Detective Sangster’s memory, more than three and one half years after the event, was weak on some points.

[122] The only other pertinent evidence coming from Detective Sangster related to nine photos which became exhibit 37. His evidence was that if one were, in 2010, driving the stretch of Highway A1, east from where the respondent came onto it from Flamingo Beach Road, past Falmouth, and towards Burwood Road, one would have seen a number of “signs indicating different places like hospitals, the town and road signs directing you where you want to go, which districts are [indecipherable word] …. you’d have shops, and you’d have entertainment and hotels, and other places turning off the highway.” The detective identified the various buildings shown in exhibit 37 as being there in 2010, and as still being there. He identified the signs located at the first left turn off the highway into Falmouth. Those signs (there are five that I can see) include the usual white on blue H indicating a hospital. As far as I could tell, the last two photos were taken on Highway A1, in the vicinity of the community of Burwood Beach, and therefore would not have been seen by someone driving on Burwood Road. In other words, the applicant and the respondent would not have seen them when doing the loop on Burwood Road.

[123] What is apparent from the photo showing the hospital sign is that someone in authority needs to do some winnowing of the signs at the corner. The hospital sign is the smallest of them all. Directly beneath it is a large sign advertising some sort of restaurant. Behind it is a huge sign with a picture of a cruise ship. There is a significant amount of vegetation at the corner – who knows what state that was in in 2010. Perhaps all of these visual distractions are the reason that neither the respondent, nor the applicant, remarked the hospital sign on December 23, 2010.

Corporal Swaby

[124] Corporal Swaby did not have much to say that was particularly relevant to the issue of whether the respondent did, or did not, try to kill the applicant on the day in question. He identified the location where he met the respondent after being advised to go there. It is to the east of the corner where the Burwood Road enters Highway A1. He confirmed that the respondent told the story about being robbed. He confirmed that the respondent told him that the robber had cut his wife’s throat. He said that the respondent told him that he did not know where his wife was and that the robber had pushed her out of the car. He said that he had observed swellings on the respondent’s hands and face. And as I set out above, he testified that Detective Sangster told him at the hospital, before the respondent was taken to the police station for the initial interview, that the respondent had tried to kill his wife.

Huntley Russell

[125] Huntley Russell’s testimony was fairly brief. He was driving east on Highway A1, in the Burwood Road area, when he saw the car driven by the respondent. It was swerving from side to side. He saw a “white person” leaning over the driver’s side. He then continued on a bit up the road until two ladies waved him over. He stopped and spoke to them. As a result of what they said, he made a U-turn and drove back to the west. He saw a lady on the left-hand side of the road. She was on her knees and holding her throat with one hand. She was saying “help me, help me please; my husband did this to me”. Another car pulled up; he assisted getting her into that car, and asked them to take her to the hospital. He noticed that there was blood coming from between her fingers; between her fingers and her throat. When he helped her into the other car he saw a slash on her throat. He said that he would give chase to the other vehicle. No one ever asked him whether he actually gave chase, or what he observed if he did.

June Warren

[126] Ms. June Warren testified that she was waiting for a taxi at the intersection of the old road at Retreat Heights and the highway. She was standing on the left side. She observed a grey Suzuki Vitara coming from the direction of the old road onto the highway. She could hear faint sounds from inside the car. As the car turned onto the highway without stopping, she saw the door fling open and two feet hang out from it. She could hear a voice coming from the car, “very clear – a voice of a woman.” When she was asked what the voice said, Ms. Warren answered that “[she] just catch it that, really a person was begging for help.” The car drove on, and as it approached the corner something left the car. The car was driving very fast. Ms. Warren made no mention of the car swerving back and forth across the road.

[127] When she was cross-examined, Ms. Warren at first said that the car had come around the corner between 60 and 70 miles per hour, and that the driver did not slow down to look both ways, but just came right out onto the highway. The driver did not use his signal. Although the car slowed down a bit once on the highway, it was still going fast. She added that the car slowed down again near the curve, and that was when the person exited the car. When asked the distance from where she was standing to where something came out of the car, Ms. Warren said “18 to 20 chains.”[^17]

[128] Ms. Warren gave a witness statement to the Jamaican police on January 21, 2011. It would have been better had that statement been made an exhibit, and in retrospect I should have insisted that it become one. I say that because from her answers herein, it appears that she had said in her witness statement that the car had halted after coming onto the highway. When that was pointed out to her in cross-examination, she said that something went wrong when she gave her statement to the police, and that it was not her mistake. The respondent also used an excerpt from Ms. Warren’s testimony at the preliminary inquiry and from the criminal trial to cross-examine her. From that portion of her cross-examination, it is clear that when she testified at the preliminary inquiry she said that the car almost stopped before the person exited it. In her cross-examination at the criminal trial she said that the car almost stopped after the person exited the car. She also said that the voice coming from the car was “faint”.

[129] At the end of the day, while I am convinced that Ms. Warren was doing her best to be accurate and honest when she gave her statement to the police, when she testified at the preliminary inquiry, when she testified at the criminal trial, and when she testified via Skype in this matter, I am going to assume that her earlier testimony was likely more accurate, being more proximate in time to the events.

Dr. Pickup

[130] Dr. Pickup was qualified as an expert in forensic pathology. His report dated March 31, 2014, became exhibit 28. In chief, he was asked what he considered before preparing his report. He said that he had been given four digital photographs and four documents: a consultation note dated January 3, 2011, by a Dr. Minet, two portions of the transcripts from the criminal trial (pages 600 to 699), and a Globe and Mail article.[^18] He read everything given to him, although he said that he had not relied upon the newspaper article. The transcript portions were the evidence of Dr. Karma and Detective Sangster in chief. He relied upon what was said by Dr. Karma when he formulated his opinion.

[131] The four photographs were taken in the hospital in Jamaica on December 23, 2010. Dr. Pickup “put them on the back burner”, because of their poor quality and the lack of scale, and concentrated on the evidence of Dr. Karma from the criminal trial. Dr. Pickup gave a physical description of the wounds to the applicant’s neck – their location (the front of the neck over the voice box), width (10 centimeters) and depth (fairly superficial). Dr. Pickup further elaborated by what he meant when he described the wound as superficial. He said that it passed through the skin, a very thin muscle just underneath the skin, and a portion of a larger muscle (the left sternohyoid muscle). The wound, being superficial, was not life threatening. Had it been deeper, or had a major artery or vein been cut, it could have potentially been fatal.

[132] Dr. Pickup testified that experts such as himself could not offer an opinion as to whether the sharp force instrument which had caused an injury went from the right to the left or vice versa; whether the instrument had been held from behind or in front of the part of the body injured; or whether the instrument had been wielded by a right-handed or a left-handed person. This limitation arises from the fact that situations where people sustain sharp force injuries “tend to be fairly dynamic”. As he said, “There are way too many variables for [experts] to be able to come up with any meaningful inferences based on the characteristics of the wound. To do so would really be speculation.”

[133] The nub of Dr. Pickup’s opinion is found on page two where he said that it was not possible for him to determine who caused the applicant’s wounds and that he could not exclude her story as an explanation of how the injuries were sustained. The second portion of that opinion is repeated in the last paragraph of the report which reads:

According to Ms. McCarthy, Ms. Clayson describes an initial injury to her neck (described as what felt like ‘a wet slap’), after which, she put her hand to her neck, and sustained the injury to her thumb. I am unable to exclude this as an explanation for how the injuries on Ms. Clayson’s neck and thumb were sustained. I am not able to determine the relative positions of the individuals in the alleged confrontation, nor am I able to give an opinion as to the directionality (left to right or right to left) of the wound, or the handedness (right or left hand) of the individual holding the knife.

[134] After the doctor gave that opinion, he was asked any number of questions relating to the injuries to the applicant’s thumb, and whether they were consistent with defensive wounds. The doctor was also asked various questions on an article entitled “Sharp force injuries in clinical medicine – Findings in victims and perpetrators.” The article became an exhibit. Among other things, the doctor was asked about the incidence of accidental injuries to the neck by sharp force instruments. The answer was that they are exceedingly rare. Having reviewed all of those questions and answers, it is my conclusion that none of them either added to, or detracted from, the opinion found in the paragraph above.

[135] The respondent cross-examined Dr. Pickup at some length. The majority of his questions related to the above article and were very specific, if not scientific. Some salient points can be drawn from this cross-examination. The respondent asked whether if someone holding a knife with the radial side of the blade pointed towards the thumb, could unintentionally cut the palmar part of her thumb.[^19] Dr. Pickup answered yes. Another question was where one would expect to see an injury on the hand of a victim who had just had her throat cut from behind and who then brought her hand up to her neck to protect it, before the second attack from behind. The answer was obvious and did not really need an expert to answer it – that one would expect to see an injury to the back of the hand. Another question was whether in fact only minimal force would have been required to cause the superficial injuries to the applicant. Dr. Pickup answered yes. Another question was whether the doctor would expect to see only superficial injuries such as occurred here, assuming that someone having the physical characteristics of the respondent was intending to kill someone with the physical characteristics of the applicant. Dr. Pickup answered no, one would not expect to see only superficial injuries. However, the doctor was quick to add that he had been around long enough to learn that what he expects to see is not always what he sees. The doctor also agreed that he would expect a larger male to be able to inflict lethal injuries upon his intended target, but it does not always happen. The penultimate question was whether a smaller female wielding a knife against a large male could herself receive superficial injuries. The answer was yes. Flowing from that, the respondent asked whether it was possible that the applicant was the perpetrator and that she had received her two superficial cuts during the struggle. The doctor’s answer was that he could not exclude the possibility that the applicant was the perpetrator.

[136] In re-examination, the doctor was asked to compare the two statements that he had made: that he could not exclude the possibility that the applicant’s injuries had happened in the fashion described by her, and that he could not exclude the possibility that they had happened in the fashion described by the respondent. The doctor never directly answered that, but instead said that an injury to the neck occurring when one is disarming someone would be unusual or infrequent, and while anything is possible when a knife is involved, it would be unlikely. When I asked him to clarify what he had just said, he said that it was unlikely, but not excluded, that the applicant could have sustained the injuries to her neck while the respondent was trying to disarm her.

Dr. Jaffe

[137] Dr. Jaffe says in his report that he and his clinical social worker made the assumption, based on the totality of certain information, that the respondent had in fact attacked the applicant as alleged by her. While he was careful to say that he was not attempting to usurp the function of this court, when I examine the “information” enumerated by Dr. Jaffe, in my view that is exactly what he did.

[138] Dr. Jaffe starts by making the statement that the Jamaican criminal trial was not consistent with Canadian criminal proceedings, in that the respondent was able to make a statement to the jury without being sworn or cross-examined. Dr. Jaffe refers to a consultation with a retired judge of this court who has “specialized knowledge about Jamaica” because he had been involved in training Jamaican judges. That judge reportedly told Dr. Jaffe that this ability to give an unsworn statement from the dock is “very controversial”, is “under review”, and “would not meet the standards of the Canadian Justice System”.[^20]

[139] The right of an accused to an unsworn dock statement has a long history at common law. Up to the coming into force of the Canada Evidence Act of 1892, an accused had a common law right to make a statement from the dock. He was otherwise incompetent to give evidence. The 1892 act abolished that common law right. However, even after the coming into force in England of the Criminal Evidence Act of 1898, which act likewise granted an accused the right to take the stand and give sworn evidence, an accused retained the option to make a dock statement.[^21] Such a statement had to be put to a jury and had evidentiary value. This right was only abolished in the Criminal Justice Act of 1982. However to date in Jamaica, the right of an accused to make an unsworn dock statement remains an important part of the justice system.[^22] Thus, while it is no longer permissible in Canada or England, it is open to debate as to whether this should result in the Jamaican criminal justice system being considered less trustworthy, or more importantly, that it means that the respondent was more likely than not guilty. Frankly some might see this perspective as patronising, or worse.

[140] The next four reasons set out by Dr. Jaffe in support of his conclusion that the respondent attempted to kill his wife amount to nothing more than his attempt to apply what he sees as the logic of certain actions by the parties, before going to Jamaica, on December 23, 2010, and at the criminal trial. These are some of the same “logical” arguments put forward to this court by counsel for the applicant. Often, they rest upon matters that have to be decided by me, after I have sifted through the totality of the evidence. Just as often, Dr. Jaffe’s chain of reasoning is so weak that it does not bear even a minimal examination.

[141] Simply put, Dr. Jaffe went well beyond his task of making recommendations regarding custody and access.

[142] Dr. Jaffe was more restrained when being examined by counsel for the applicant. I have already referred to that in my endorsement of August 6, 2014. I will not repeat here what I said there. Nothing helpful arose from the cross-examination of Dr. Jaffe by counsel with respect to the issue of whether the respondent did in fact try to kill the applicant on December 23, 2010.

Dr. Bloom

[143] What of Dr. Bloom? There is really nothing that I can add to that which is set out in my endorsement of August 6, 2014. As I set out in paragraph [48], in Dr. Bloom’s opinion, the respondent does not have a violent predisposition and he does not have any psychiatric disorder. In Dr. Bloom’s opinion, the respondent is not mentally ill and does not have a personality disorder. However, as I set out in paragraph [51] of my endorsement of August 6, 2014, in Dr. Bloom’s opinion, that did not totally rule out the possibility that the respondent had tried to kill the applicant.

Sherron Brydson

[144] Just before the respondent finished his evidence in chief, he attempted to get admitted as evidence in this trial, a portion of the transcript from the criminal trial of the evidence given by Ms. Sherron Brydson, a forensic officer employed by the Ministry of National Security and attached to the Forensic Science Laboratory. The respondent testified that he had contacted Ms. Brydson via email to ask her if she would testify in this trial. She said that she would have to speak to her supervisor. When she got back to him, she said that her superior had told her that her duties had finished with the criminal trial and that he would not allow her to testify in this matter. The respondent said that he had kept the emails and would print out copies for the court. Although counsel for the applicant said that the respondent’s story (about Ms. Brydson not being able to testify) did not have “an air of reality” to it, she did not later follow that up in cross-examination. Just as I accepted counsel’s word that she could not present either Dr. Karma or Dr. Minet, I accepted the respondent at face value when he said that he could not get Ms. Brydson to testify.

[145] Because this attempt by the respondent to have Ms. Brydson’s evidence admitted was most vehemently opposed by counsel for the applicant, I agreed to postpone the argument until later. Earlier that very day, counsel had gone so far as to say that she had considered the matter further since seeking the admission of Dr. Karma’s report back on the second day of this trial, and now she did not necessarily (my emphasis) think that the court should have admitted the evidence of Dr. Karma. It is perhaps worth noting that in the interim, counsel had supplied the court with an excerpt from the Canadian Encyclopedic Digest, and some cases regarding exceptions to the rule against hearsay evidence, and in particular the use of transcripts from a criminal hearing in a later civil hearing.[^23] After a long discussion between counsel and the court about possibly holding a voir dire, and about what principles could be drawn from the cases, I agreed to postpone the argument regarding admitting Ms. Brydson’s evidence until another day in order to give counsel more time to prepare her argument. When I later ruled that I would admit the evidence using the principled approach as first articulated by our Supreme Court in R. v. Khan, I said that I would expand upon my oral reasons in my final judgment.[^24] I am doing so now.

[146] Counsel for the applicant relied upon a line of authorities which much limit the use of transcripts from prior proceedings. Under common law in civil proceedings, prior testimony was admissible where the following four criteria were met: 1) the declarant was unavailable due to death, absence from jurisdiction, illness, or was missing; 2) the former proceedings were between the same parties; 3) the former proceedings involved the same subject-matter; and 4) the opponent had an opportunity to test the declarant’s credibility. In my view, the principled approach trumps the reasoning in the cases cited by the applicant’s counsel.

[147] In R. v. Hawkins, Lamer C.J. and Iacobucci J. examined the intersection of the common law rules, and the principled approach in Khan, starting at paragraph 58.[^25] What I draw from what was written there, is that while evidence at trial made by witnesses in a prior adjudicative proceeding represents a form of hearsay, under the modern principled framework for defining exceptions to the hearsay rules, that prior evidence will be admissible for the truth of its contents if it meets the separate requirements of necessity and reliability. The party seeking the admissibility of such evidence need only establish, on the balance of probabilities, that it is both necessary and reliable.

[148] The criterion of necessity refers to the necessity of hearsay evidence to prove a fact in issue. It should be given a flexible definition. See R. v. Smith.[^26] Generally, evidence should be presented to the court in its best available form. That is usually accomplished by calling the declarant of the statement as a witness. However, the necessity criterion will usually be satisfied where viva voce evidence is unavailable owing to a witness being, for example, deceased, missing, out of the jurisdiction, incompetent, or otherwise reasonably unavailable to provide their testimony.

[149] In this case, the necessity criterion is readily met. The respondent indicated that Ms. Brydson had told him that she would be unable to testify in this matter, as her duty had been fulfilled at the criminal trial. As a result, Ms. Brydson could not be called to give viva voce evidence, even via Skype, and as such I found that it was necessary to have her transcribed prior testimony admitted as evidence herein.

[150] 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.”[^27]

[151] 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.

[152] Ultimately, the probative value of this evidence outweighs any prejudicial effect.

[153] On January 5, 2011, Ms. Brydson attended at the Falmouth police station to examine the gray Suzuki Vitara for the presence and distribution of blood. She sampled seven areas and found evidence of blood. She took the samples back to the lab. She described finding four types of “bloodstains or patterns”: clots, brown stains, brown drops, and brown smudges. She described how each of the four types of bloodstains or patterns would be created. She described where she found each type. I will not set out herein all of the locations where each type was found, except to say that there were many, many, places. Ms. Brydson did a DNA analysis of five of the seven samples and determined that they were all female and all from the same individual.

[154] Ms. Brydson’s cross-examination at the criminal trial is particularly pertinent to this trial. Ms. Brydson was asked if she had carried out a thorough examination of the vehicle. She answered that she had, including all of the running boards, the hatch door, the inside of the hatch door, the hatch area inside, the rear seat - both the sitting portion and the seat back - the rear doors both inside and outside, the rear passenger door handle, and the control, or buttons, on the left and right rear passenger doors. She agreed that she examined these areas with diligence. She agreed that “if a person is bleeding from an area, and they put their hand on the bleeding area and then they touch say the front door of a motor vehicle, you would expect to see smudges or even stains” of blood. She also agreed that “If an injury has occurred which results in profuse bleeding all over the car, in a car, with blood all over the car, [her] examination ought to reveal that blood which is all over the car….”

[155] 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 retain her own blood expert. I granted a brief adjournment of nine days to allow that. When the case resumed, after an argument relating to the propriety of doing so, I allowed the applicant to call Valerie Blackman, a forensic biologist, as part of her reply case, and to have her report dated June 25, 2014, accepted into evidence. The court accepted Ms. Blackman as an expert in the field of forensic biology regarding bodily fluids; namely blood, semen, and saliva.

Valerie Blackman

[156] In my view, because the evidence of Ms. Blackman 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 might have done the testing for blood differently than Ms. Bryson did. Factors that Ms. Blackman 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 seats were taken, etc.

Analysis and Conclusions

[157] It is my normal practise to examine all of the evidence, on all of the issues, before I start my analysis and give my conclusions. I am going to break with that practise here. I am doing so for a number of reasons. To start with, there is a huge amount of evidence bearing upon whether the respondent tried to kill the applicant on December 23, 2010. My decision regarding custody and access depends almost entirely on what happened that day. The same is true for the issue of damages.

[158] It is trite, but true, that only the parties themselves know what really happened on December 23, 2010. It is my conclusion that neither of them has been entirely truthful. In fact, it is my conclusion that both have been less than honest about any number of things. While it is always somewhat dangerous for a judge to hang his or her hat on “it does not make sense”, there is so much here that does not make sense.

[159] As I have presumably made clear earlier on in this judgment, nothing in the evidence leading up to the decision to go to Jamaica in December 2010 lends itself to a conclusion that the respondent planned to go there to kill the applicant.

[160] The sole possible motive for the respondent planning to kill the applicant in Jamaica would be the respondent’s jealousy coupled with his belief that the applicant was committing adultery, and that he could not tolerate not having full-time custody of the children. There is no doubt but that the respondent did believe that the applicant was committing adultery and that he accused her of it well before December 2010. As well, the respondent was resistant to considering separation and divorce. It is however, a huge step from that to formulate a plan to kill the applicant.

[161] It is also true, as I said above in paragraphs [110] and [111], that the respondent waffled in his answers in cross-examination regarding the issues of the applicant’s possible adultery, and his beliefs and attitudes with respect to any possible pending separation. It would even be fair to characterise the respondent’s answers as being evasive at times. It was clear from the respondent’s answers that he was trying to avoid giving the other side any basis to support the argument that he had had a motive to kill the applicant. That was unfortunate. He did himself no favours in that regard. But again, I have to ask whether that is sufficient to sustain a conclusion, even on the balance of probabilities, that he intended to kill the applicant in Jamaica and tried to do so? My answer to that is no.

[162] As well, there was some hope that the parties would be able to work things out. The applicant testified that part of her wanted to believe that. And her friend, Ms. Pascal, encouraged her to go to Jamaica for that very purpose.

[163] Then there was the time at the Iberostar from the 18^th^ to the 23^rd^ of December, 2010. The applicant’s evidence in chief, and at first in cross, portrayed a picture of two people indifferent to one another, or worse. Only in cross did she agree that the vacation was close to idyllic. One can speculate that she lied to bolster her version of what happened next, but the bottom line is that she did lie. The truth also undercuts the possible motive of the respondent to kill her, rather than face a separation.

[164] If one listens just to the applicant’s version in chief, of exactly what happened from the time that the respondent stepped out of the car to take pictures, until the respondent drove off with the applicant bleeding beside him, it seems to flow better than the respondent’s story. Dr. Jaffe remarked on that.

[165] The respondent’s version did gather details as time went on. There is no doubt about that. He testified as to why. Some of what he said was sensible; some was not.

[166] However, when one puts the applicant’s story into the context of what went on before and after, it makes considerably less sense, especially when one considers the applicant’s reluctance to admit certain facts and contradictions. I am referring here to quite a number of things, starting with the “how and why” the parties got to where they were on Flamingo Beach Road. Both of them agree that the respondent had mentioned, well before the last day at the resort, that he had wanted to take pictures of the resort from the point of land to the east. That was the understanding and intention when they left the resort on December 23, 2010. I accept the respondent’s evidence that the applicant was the one who said where to turn because she was already getting anxious. Both parties agree that when she said that they should turn around, the respondent did. Both parties agree that the applicant became frightened and anxious to the extent that she refused to get out of the car, insisted on taking the car keys, and locked most of the doors.

[167] Given the applicant’s personality as described by Dr. Jaffe on page 11 of his report, and as demonstrated when the respondent’s brother came to pick up some of the respondent’s property (see paragraph [277] below), it is quite believable that she became very vocal about not wanting to get out of the car, and that she kept at the respondent about how stupid and dangerous it was for them to stop there in order to take pictures. That could well have led to a significant argument.

[168] From exhibit 5, it is clear that the respondent stopped the car at a spot where the beach was quite close to the road. While both the applicant and Detective Sangster describe the Flamingo Beach Road as isolated, the location where the respondent stopped the car is not very far from the house with the red roof. The Google map entered into evidence shows significant development on the highway immediately to the south of the place where the respondent parked. While I cannot say with any precision what the topography is like between where the applicant parked and that development, I can say, looking at the various photos and the Google maps entered into evidence, that Highway A1, and the houses on the south side of the highway, appear to be reasonably close. One can see roofs and other structures there in the third photograph taken by Ms. Iervasi. The reality appears to be that Flamingo Road is not all that isolated and that the spot where the respondent stopped the car to take pictures was even less so.

[169] There are two significant contradictions between the applicant’s evidence in chief and her cross-examination which call her credibility into question. I am referring to her testimony regarding whether the respondent said he was taking her to the hospital and whether the respondent drove slowly away from the scene. When questioned by the respondent in cross regarding whether he had said that he was taking her to the hospital, at first the applicant repeated what she had said in chief. Then, notwithstanding that her statement given to the police shortly after the incident said that the respondent had said repeatedly that he was taking her to the hospital, the applicant would still not admit that she had said that. Instead, she relied upon her words given at the criminal trial that “it did not make sense”. The same thing happened with respect to how quickly the respondent drove away after the incident. It was only after being confronted with her answers given in cross-examination at the criminal trial that she admitted her answers were completely contradictory. That had to be “dragged out” of her.

[170] 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 applicant’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.

[171] I accept that one could mistakenly hear the word “a” knife instead of “the” knife when being questioned. However, “a” knife would literally mean any knife at all. In that context, the applicant’s answers regarding what was said by her at the criminal trial when she was asked whether she had ever again seen the knife used by the respondent to attack her on Flamingo Road, make no sense whatsoever.

[172] Counsel for the applicant argues that the events after the respondent drove from Flamingo Beach Road onto Highway A1, provide strong supporting evidence of the applicant’s version of events of what had happened on Flamingo Beach Road. Specifically, counsel referenced the driving by the respondent from when he left the scene of the incident until the applicant exited the car, and the lies that the respondent told both Corporal Swaby and Detective Sangster. By “driving”, I mean the route followed, the fact that the respondent did not stop anywhere to ask for help, that he did not drive into Falmouth where the hospital is located, that he did not stop once the applicant exited the car, and that he drove back further east than Burwood before he allegedly sought help.

[173] The respondent is correct that by turning left (or east) he was going with oncoming traffic. I accept the evidence of Detective Sangster that there were a number of businesses and other establishments located along the highway as one drives east towards Falmouth. Those are shown in exhibit 37. In his evidence the respondent referred to seeing shacks as he drove, and said that he did not want to stop at any of them because he did not find their appearance comforting in the circumstances (my paraphrasing). When one looks at the first three photos of exhibit 37, one can see that they are all bars cum restaurants which might well not appeal to the sensibilities of all North Americans. The same could be said about the housing estate in the third last photo. Who can say what anyone in the circumstances of that time might or should do?[^28]

[174] Why did the respondent not see the hospital sign at the first turn into Falmouth or, even if he did not see the sign, why did he not see the sign for Falmouth and turn there (or at the second or third entrance) to go into the town to get help?

[175] As it relates to the hospital sign, one can just as readily ask why the applicant did not see it. Looking at the fourth photo of exhibit 37, my observation is that the hospital sign is quite well hidden; one could even say camouflaged. I have no idea what the other turns into Falmouth look like now or in 2010. Again who can say what one should have, or would have, done in the circumstances of the time?

[176] Both parties said that they saw a blue sign at the corner where the respondent turned right onto the Burwood Road. Is it so odd therefore that the respondent would turn there? From the Google images submitted in evidence, that road is isolated. It is also reasonably short. There was no evidence that the respondent stopped there to try to finish the job of killing the applicant.

[177] On all of the evidence, and no matter her motivation, the applicant’s actions once the respondent turned back onto the highway from the Burwood Road were creating havoc in the car. She testified that she had tried to cause an accident. Mr. Russell testified that he saw the Suzuki swerving all over the road. From what the respondent said in his evidence, and from my conclusions about what Ms. Warren actually saw, it is my conclusion that at the very least the respondent slowed down considerably at the spot where the applicant exited the car. Did she jump out and fall on her hands and knees, or step out as described by the respondent? On all of the evidence, she more than likely got out quickly and fell on her hands and knees, but I am not convinced that that supports either version of what happened on Flamingo Beach Road.

[178] Why would the respondent keep driving after the applicant exited the car? He testified that he went to get help, but then changed his mind. Again I ask who is to say, what anyone in like circumstances might have, or should have, done? Do his actions necessarily support the applicant’s version of events on Flamingo Beach Road? In my view, no. It is essentially circumstantial evidence. In that regard, I am mindful of what various courts in Canada have said about how “post-offence conduct” must be analysed with care and not over emphasised, as it can be easily misinterpreted.[^29]

[179] Counsel for the applicant argued that where the respondent actually turned in to ask for help was considerably further to the east than necessary; from my perspective from looking at the maps filed in evidence, I do not see that as being the case.

[180] Perhaps the strongest evidence in favour of a finding that the respondent tried to kill the applicant on December 23, 2010, were his lies to Corporal Swaby and Detective Sangster. If, as the respondent testified, it had crossed his mind that the applicant was blaming him, and that he had an “eerie feeling” that something was wrong, the logical thing to do would have been to tell the truth. However, as I wrote above, some things make little sense. The respondent’s stated justification for telling this tale was that he believed that the applicant would tell the authorities, as she herself had suggested, that a Jamaican man had tried to rob them. If the applicant had in fact attacked the respondent with a knife, continuing to tell this story could be seen as nothing more than an attempt to prevent her from being charged. The question is whether the fact that the respondent told this false tale, is on its own, enough to tip the scales to the point where I can find, on the balance of probabilities, that the respondent tried to kill the applicant on December 23, 2010.

[181] 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. Whether the applicant reached over and locked the back doors while moving across to the front driver’s seat, or whether as she testified at the criminal trial, she did so after she was in the front driver’s seat, one way or another she reached back there. Based on her answers to questions put to her at the criminal trial, it is my finding that she did so with her left hand. As 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. Ms. Brydson effectively agreed with that, as did Dr. Pickup. Common sense supports that. Yet, after a thorough and diligent search, Ms. Brydson found no trace of blood anywhere in the back area of the car – not on the hatch door, not on the inside of the hatch door, not on the hatch area inside, not on the rear seat (either the sitting portion and the seat back), not on the rear doors both inside and outside, not on the rear passenger door handle, and not on the control, or buttons, on the left and right rear passenger doors.

[182] The evidence of Ms. Blackman, based on so many unknowns (to her) does not significantly undermine the weight of Ms. Brydson’s evidence.

[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.

[184] Dr. Pickup also said that he could not exclude the possibility of the applicant’s injuries being caused by the events as put forward by the respondent. That led to the doctor being asked in re-examination to compare how he would compare the two non-excluded possibilities. Except perhaps indirectly, he never did answer the question. Thus while it might be “unusual”, “infrequent”, or “unlikely” for someone’s neck to be cut as the applicant’s was when someone else was trying to disarm the person wielding a knife, the possibility could not be excluded.

[185] That evidence by Dr. Pickup must be coupled with his answers set out in paragraph [135] above. Those answers serve in the main to undermine the applicant’s version of the events on Flamingo Beach Road.

[186] In my endorsement released on August 6, 2014, I commented that I did not accept the applicant’s description of the respondent’s violent behaviour prior to December 2010. I set out a number of reasons for that which I will not repeat here. The corollary of my conclusion is presumably obvious - that the applicant had deliberately attempted to mislead the court on that issue. That necessarily affects my assessment of her overall credibility.

[187] The standard of proof in any civil case is the balance of probabilities. I agree with counsel for the applicant that all that is required, expressed as a percentage, is fifty percent plus anything, or as she otherwise phrased it “more likely than not to be true.” 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. The applicant was on the stand for the better part of four full days and three more partial days. The respondent was on and off the stand for parts of seven days. During that time, I had ample opportunity to observe the demeanour of both of them. At times, each came across as sincere truth tellers. At other times, each appeared to be avoiding giving straight answers. At times, both were evasive. 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.

[188] The evidence led by the applicant regarding the respondent’s possible plan to kill her in Jamaica and his motives to do so, have little traction.

[189] The expert evidence of Ms. Brydson fundamentally contradicts the applicant’s version of events. Dr. Pickup’s opinion supports either possibility, is lukewarm at best in favour of the applicant, and may have been compromised by his reading the Globe and Mail article submitted to him by counsel for the applicant.[^30]

Custody and Access

[190] Dr. Jaffe said the following on the last page of his report:

If the court reaches no conclusion in regards to the Jamaican incident, the court still faces circumstances that would make joint custody or shared parenting impossible in the circumstance. In the event that the court decides that there is no finding possible about whether Mr. Martin attacked Ms. Clayson in Jamaica, we would recommend that she continue in her role as the custodial parent and that he have the children on alternate weekends from Friday after school until Monday morning and Wednesday after school until 8 pm. For these visits, the pick-up and drop-off can be at school with the exception of the Wednesday evening which can be through the access centre or agreed upon friend or family member. Holiday periods can be shared equally. A parent coordinator and counsellor for the children described above would still be essential.

The recommendations regarding access in this rather prophetic paragraph are not as fully articulated as they might have been.

[191] I have reviewed the examination of Dr. Jaffe by counsel for the applicant.[^31] Next to nothing was asked of him regarding his recommendations with respect to what access the respondent should enjoy if the court was unable to find that he (the respondent) had not tried to kill the applicant. Unfortunately, the same was true when the respondent examined Dr. Jaffe. To a large extent therefore, I am left to guess why Dr. Jaffe recommended that the applicant continue to be the custodial parent, and that the respondent have somewhat limited access.

[192] Perhaps the key to Dr. Jaffe’s above recommendation can be found in his answer to a question asked of him by the respondent regarding whether the best interests of the children would be met by having a separate, safe, caring and loving relationship with both parents. Dr. Jaffe said that he was worried about the harm created by the trial, and how that would affect the chances of healing. He was worried about the applicant’s ongoing fear and how that would affect the children’s stability and security. He added “Ultimately, you cannot have two high functioning parents, you need to build a foundation around one of them to feel safe and secure.” As I interpreted this answer, it reflected Dr. Jaffe’s belief that the respondent had in fact tried to kill the applicant, and that therefore her ongoing fear was more than legitimate, otherwise this statement defies logic.

[193] Dr. Jaffe also said that one of the challenges in this case was that the aftermath of Jamaica incident would expose the children to never-ending conflict between their parents. He felt that inevitably there would be ongoing tension, fear, and acrimony. He was concerned about Emma soon being able to find information on the internet, setting out two polar opposite versions of what had happened in Jamaica. While he endorsed counselling, he did not believe that that would necessarily solve the problem.

[194] Dr. Jaffe was reluctant to say whether either child, or particularly Emma, should have therapy or counselling no matter the outcome of the trial. He had made that recommendation in his report but opined that since a year and one half had gone by, he could not say whether that would still be a good idea.

[195] The respondent cross-examined Dr. Jaffe, regarding what he had written in the second paragraph under the heading “Overall Clinical Findings”. That first two sentences of that paragraph read:

If this matter had come before the family court prior to the December 2010 trip to Jamaica, there would have been no genuine dispute in regards to a child custody and access arrangement. The likely parenting arrangement would have been a joint custody/shared parenting plan developed through their respective counsel.

Dr. Jaffe’s answers were to the effect that notwithstanding their differences in parenting styles, had whatever happened in Jamaica not happened, both parties would have been agreeable to some sort of shared parenting arrangement. While they both had complaints about the other, they would have been able to sit down, possibly with the assistance of a third party or lawyers, and arrive at a mutually satisfactory arrangement.

[196] At the end of the day, I do not have any direct evidence as to why Dr. Jaffe recommended that the applicant continue in her role as the custodial parent or why the respondent should have limited access. That said, my endorsement of August 6, 2014 does presumably reflect Dr. Jaffe’s reasoning behind why he thought that the respondent should have normal access.[^32]

[197] I cannot imagine that my finding - that I cannot make a finding as to what really happened in Jamaica on December 23, 2010, - some four full years ago now, will do anything to improve the relationship between the parties. It might possibly make matters worse. For that reason alone, I agree with Dr. Jaffe that any kind of parenting arrangement that required joint decision making, frequent consultation, or anything beyond minimal contact, would not be appropriate. This is so patently obvious that I am not going to delve into an examination of Kaplanis or any other of the usual Court of Appeal cases on this issue.[^33]

[198] Would a parallel parenting order be appropriate? Such orders are sometimes made when the parties have difficulty communicating.[^34] In my view, this case is so unusual (extreme if you will), that any order that required contact beyond the absolute minimum would not be appropriate. Even if each parent were “sovereign” with respect to decision making during the time that the children were with her or him, it would be inevitable that some kind of contact beyond the bare minimum would be required. An example would be schooling. Therefore, I dismiss that as a possibility.

[199] One parent therefore must have sole custody. It is my decision that the applicant should be the one. She has been filling that role for four years now. That is more than one-half of Kaiden’s life and close to one-half of Emma’s life. However, as I am not without concerns about the applicant’s attitude towards the respondent as a parent, let alone otherwise, I intend to impose some reasonably strict conditions on her custodial powers.

[200] The applicant may not change the children’s residence without giving the respondent 60 days’ notice, in writing.[^35] She may not move more than 15 kilometres from her current place of residence without the respondent’s consent or a court order. She may not change the children’s names, without the respondent’s written consent. She may not change the school(s) which the children attend. When a child starts to attend high school, subject to written approval by the respondent, the applicant must enroll the child in the local school. The applicant may not change the children’s doctors or dentists, without notifying the respondent in writing, at least 60 days in advance. She must advise him now, if she has not already done so, of the names and particulars of all medical professionals who treat the children. The applicant may not enroll either child in any extra-curricular activity or sport that obliges the respondent to take a child to such an activity or sport during his time with the children, except with his prior written consent. The reverse will also apply.

[201] The more difficult question in some ways is what access the respondent should have. As I wrote above, Dr. Jaffe did not explain his recommendations and neither party spent any time examining him about that. Given that, I should have done so but did not. Obviously, supervision must immediately cease.

[202] Whatever schedule I order, it should minimise contact for the reasons set out above. From that perspective, the mid-week exchange on Wednesdays is perhaps not the best idea. It also makes sense to me to move forward somewhat gradually given that the children have been seeing the respondent on a limited basis for almost three years now. Accordingly, my order reflects both of these “principles”.

[203] My order is that the respondent will have the children in his care every second weekend from Friday immediately after school until Monday morning, when he will take them to school. This will start with the weekend of January 9, 2015. That will continue until the first weekend in April 2015, when the weekend will start on Friday after school and continue until the following Tuesday morning, when the respondent will take them to school. That schedule will continue until the end of the school year in June 2015.

[204] The respondent will have the children in his care for a minimum of five weeks each summer starting in 2015. This is to be in blocks of three weeks and two weeks. I have chosen the number of weeks to be accorded to the respondent based on the fact that he is a teacher and therefore has the whole summer off. That will still leave the applicant with four or more weeks to herself. This is uninterrupted time, except for telephone calls which I deal with below. The respondent may choose which weeks. Each year the respondent must give the applicant two months’ written notice of which weeks he chooses.

[205] Starting with the week of Sunday August 30, 2015, the children will rotate between their parents’ places of residence on a week-about basis. The exchange time will be Sunday at 7:00 pm.

[206] If the respondent’s work schedule is such that he cannot pick the children up from their school as soon as they have finished, then he may do so at whatever daycare facility or after-school programme they might be attending. Although the applicant is free to choose who provides daycare or after-school care, she must at all times keep the respondent advised of who is doing so.

[207] As suggested by Dr. Jaffe, the parties will split equally all school holidays, including Christmas, Easter, and the March break. I will leave it to the parties to work out how exactly that equal sharing will work. They are to do that with the assistance of the parenting coordinator. However, the respondent is to have at least Christmas Eve and morning in 2015. I dealt with Christmas access for 2014 in my endorsement released December 23, 2014. Therefore, I need not deal with it herein.

[208] Telephone access has been a point of contention in the past. Many of the respondent’s allegations regarding contempt relate to that. However, some telephone contact is appropriate by each parent when the children are not in her or his care. The respondent will have telephone contact with the children every Thursday in the week following his weekend access and every Wednesday in the week before his weekend access. That call will take place at 7:00 pm. The applicant is to have the children ready and available for those calls. There is no need for the applicant to answer the phone; she should let Emma do so.

[209] During the summer months, each parent may call the children once a week when they are not in her or his care. That call will take place on Wednesdays at 7:00 pm.

[210] Starting with the new week-about schedule in September 2015, each parent may call the children once a week when they are not in her or his care. That call will take place on Wednesdays at 7:00 pm.

[211] As some contact between the parties relating to the welfare of the children is inevitable, the parties must, within 60 days of the release of these reasons for judgment, appoint a parenting coordinator. Each party will be responsible for paying one-half of the fees of that person. Neither party directly addressed the use of a parenting coordinator in closing submissions. The respondent had made it clear in his testimony and in questions posed by him in cross, that he favoured having one. It is my belief that I have the jurisdiction to make this order using paragraph 28(1)(b) of the Children’s Law Reform Act (CLRA). If I am mistaken, then in my opinion, I can rely upon my parens patriae jurisdiction. I recognise that there is some question as to whether, absent a consent, I can employ my parens patriae jurisdiction to order that the parties engage the services of a parenting coordinator. In my view, the facts of this case are so extreme that having such a person onboard is an absolute necessity. If the parties cannot agree upon who will be the parenting coordinator, a 14B motion may be brought to my attention or to the attention of Justice M. Scott.

[212] I have no information as to what steps have been taken by the parties to comply with paragraph [78] of my endorsement of August 6, 2014. If that has not occurred, then it must be a priority item with the parenting coordinator.

[213] As the parties need some fashion to communicate other than through a parenting coordinator, I am ordering that they register with either Family Wizard, or its Canadian equivalent, Coparently. They are to share equally the costs thereof. The postings made by the parties are to be available to the court in the event of any future proceedings.

[214] The respondent is entitled to all of the benefits of subsection 20(5) of the CLRA. He may attend school functions, but to avoid conflicts or worse at the school, the details of how that will occur are to be worked out with the parenting coordinator.

[215] The applicant may continue to choose who provides daycare and after-school care for the children. She must always keep the respondent up-to-date regarding her choices.

[216] Had the applicant not changed the schools attended by the children, I would have made an order that they continue in the Catholic school system, at least until high school. It is too late for that now. However, as his religion is important to the respondent, and since the applicant did not profess any particular religious beliefs, I am giving the respondent the right to direct the children’s religious education and the right to have them do whatever might be required to be properly admitted as members of the Catholic religion. That is the sole exception to the applicant being the custodial parent of the children.

Damages

[217] The applicant seeks damages for battery, assault, false imprisonment, and intentional infliction of mental suffering. She seeks an award of $360,000.00 for general, aggravated, and punitive damages. Because I have not found, even on a balance of probabilities, the facts necessary to support these claims, I am not awarding the applicant any damages. However because, for appellate purposes, damages must be assessed irrespective of my finding on liability, I must do that.[^36]

[218] This area of the law is one with which I have limited experience. Counsel for the applicant submitted a lengthy factum and a significant number of cases on the issue of damages and how to assess them. The respondent’s submissions left the issue entirely in my hands. Therefore, I feel that I need further time to properly explore the evidence and the law on this issue. However, because I feel that it is important to release these reasons before the end of the year, I am going to continue to reserve that matter and will deliver my reasons thereon in the New Year.

Child Support

[219] At least on an ongoing basis, this is a relatively straightforward issue. Both parents hold salaried positions, and their incomes are known.

[220] On May 12, 2012, Justice C. Nelson made an order for child support in the amount of $1,350.00 per month, plus another $302.00 per month for expenses for daycare and gymnastic expenses, pursuant to section 7 of the Child Support Guidelines (CSG). I must presume that Justice Nelson had the appropriate receipts in front of him when he made that order. Justice Nelson apportioned the section 7 expenses between the parties on a 51/49 percent basis, using incomes of $99,190 for the applicant and $94,616 for the respondent. Those payments were effective June 1, 2012.

[221] The respondent earned $94,293.24 in 2013. Basic child support on that amount is $1,346.00 per month. I have no evidence as to why there is that slight difference in the respondent’s income as used by Justice Nelson and what the respondent earned in 2013. I am going to use the figure of $94,293.24 for my calculations, including for 2012. That means that the respondent is entitled to a monthly credit of $4.00.

[222] There is a discrepancy between the figure used by Justice Nelson for the applicant’s income and her actual income in 2012. Her T4 income that year was $118,437.00, and she had another $20,875.39 in RRSP income. The argument is that the RRSP income should not be used for the purpose of calculating the applicant’s share of section 7 expenses, because the applicant was in difficult financial circumstances due to the loss of the respondent’s contribution to household expenses. I agree with that reasoning. I also agree that the same reasoning should be applied to 2013; however, without including her RRSP income for 2013, the applicant nonetheless had T4 income of $118,854.00. That increases her share of section expenses to 56% for both 2012 and 2013.

[223] The applicant does claim her childcare expenses on her tax return. That is not disputed. What the respondent takes issue with is that the applicant uses family members as well as more official daycare providers. He queries whether the amounts claimed by the applicant are actually paid. As it relates to this issue, I accept the evidence of the applicant.

[224] Counsel for the applicant included various charts relating to section 7 expenses. They form part of exhibit 14. The chart at Tab 3 is the calculation for section 7 expenses up to and including June of this year. It also includes the shortfall in basic child support for May 2012, when the respondent only paid $500.00 in child support.[^37] That calculation shows $3,309.00 as the amount owing by the respondent up to and including May 2014. I agree with the manner in which the calculation was done and accept the evidence behind it. The respondent therefore owes the sum of $3,309.00 for arrears of both basic child support and section 7 expenses, up to and including May 1, 2014.

[225] While it is a very minor amount, the sum of $68.00 must be deducted from the figure of $3,309.00, as per my calculation in paragraph [221]. The respondent therefore owes $3,241.00 for arrears of both basic child support and section 7 expenses, up to and including May 1, 2014.[^38] This net amount owed by the respondent to the applicant for child support is to be paid off at the rate of $150.00 per month, starting February 1, 2015.

[226] While I obviously do not have any evidence with respect to the actual incomes of the parties for 2014, or the section 7 expenses for the children from June 1, 2014, on, I am going to assume that nothing has changed. Accordingly, the respondent is to continue to pay basic child support in the amount of $1,346.00, plus an additional $433.00 per month for section 7 expenses, up to and including June 1, 2015. Starting July 1, 2015, the parties will employ section 9 of the CSG.[^39] I frankly see no need to do a Contino analysis as the parties will be sharing the children on a 50\50 basis.[^40] In my view, as it relates to basic child support, there should simply be a straight set-off as per section 8 of the CSG. Both parties will be required to provide food, clothing, housing, and other primary expenses for the children. The parties are to use their 2014 line 150 incomes, minus any amount arising from the cashing-in of RRSPs. Depending upon the applicant’s income, there may be a small credit to the respondent which can be used to offset his share of section 7 expenses. Annual adjustments are to occur each year on June 1^st^, starting June 1, 2016.

Restraining Order

[227] The applicant’s request for a permanent restraining order was, of course, based on her position that the respondent had tried to kill her on December 23, 2010; her evidence about her ongoing fears; her concerns that the respondent was trying to find out where she lived; and that he had moved to the same community in which she lives. Even though I have not found that the respondent tried to kill the applicant on December 23, 2010, and even though the truth of what actually happened that day will possibly never be known, something reasonably dramatic, if not dreadful, happened on that day. Unless the parties themselves are able to come up with a method to reconcile their divergent truths, some kind of restraining order is appropriate.

[228] I have already ordered that the parties retain a parenting coordinator and either Family Wizard or Coparently. Except for a true emergency, or any agreement in writing otherwise by the parties, there is to be no direct communication between the parties.[^41] Even then, if possible, the parties are to first attempt communicating using family members.

[229] Should there be a restriction as to where the parties can live in relation to one another? Dr. Jaffe was asked about that. He said that there is no magic number with respect to distance, between their homes. As he added, the parties already live and work in the same community. Neither party said anything about moving. My order is that the respondent not move any closer to where the applicant lives, than he now lives.

Contempt Motion

[230] The respondent created a spread sheet of nearly one hundred occasions when he alleged that the applicant had committed contempt of court, either by denying him telephone access or access at the SAC.[^42] This document became exhibit 39. Considering how important this issue was to the respondent, he gave somewhat limited evidence about this when testifying in chief. That evidence was not always focused or pertinent. He did cross-examine the applicant with respect to this issue, but it was equally unfocused and seemed more directed to getting the applicant to admit that he was an important element in the lives of the children. The respondent was cross-examined reasonably extensively about his allegations.

[231] It was clear when the respondent gave his evidence in chief that he did not quite grasp the standard of proof required for a finding of contempt, or even what actions or inactions would amount to contempt, as opposed to difficulties arising out of the normal vagaries of life. For example, the respondent put forward what happened during a phone call on March 11, 2012, as an incident of contempt. On that occasion, Kaiden said something like “hi stupid” and told his father that Emma was outside building a snow fort. The respondent’s complaints about the phone calls on March 14, 18, 21, and 25, 2012, and many other occasions were similar in nature.

[232] Even the respondent admitted that various entries on exhibit 39 did not belong there. For example, there were times when the SAC was closed for various reasons or when there was a problem with the person who was supposed to monitor the calls.

[233] There were times when, according to the applicant, one of the children was too sick to attend at the SAC. While it was apparent that the applicant was not all that enthusiastic with respect to both telephone and face-to-face access, and that she did not go out of her way to facilitate the phone calls, I accept her evidence as to those occasions when a child was too sick to attend.

[234] There were times when the applicant reported that she was unable to get the children to the SAC due to her work schedule. While one might be suspicious, and even argue that the applicant should have made other arrangements, in my view that would not amount to “wilful disobedience of a court order”.[^43]

[235] However, the applicant admitted in cross-examination that she had unilaterally cancelled the telephone calls in October 2011, when the order of September 28, 2011, was barely a few weeks old. She did that by having her then lawyer send a letter to the respondent’s then lawyer. In that letter the reason provided by the applicant was that she was acting on the advice of a child psychologist. She repeated that when being cross-examined. To the best of my memory, the psychologist was not named. Certainly no letter or report from any psychologist was ever presented in evidence. Therefore, the court cannot accept for its truth, what the applicant said, as to what the psychologist had said. That would be hearsay. Neither party addressed this in argument.

[236] The applicant also admitted that she had cancelled the phone call scheduled for the Thanksgiving weekend of 2011, because she “had plans with the children”. She disagreed that she could have just used her cell phone to accommodate the phone call. She went on to say that it would not have been appropriate because she was with her family and the phone call would have interrupted their dinner. That of course, would not have been a valid reason to ignore a court order.

[237] However, that turned out to be a lie. When faced with some of her evidence from the criminal trial, the applicant admitted that she had said there that she had just spent the “long weekend” in October in Florida. Given that the trial took place in November 2011, she must have been talking about October 2011. Rather than admit that she had told a lie about having dinner with her family at Thanksgiving 2011, the applicant answered that she was not sure and that she had gone to Florida a number of times. Then she said that she did not recall the exact date that she went to Florida in October 2011. When asked again what else she could have possibly meant by the long weekend in October, she finally agreed that it must have been the Thanksgiving weekend.

[238] Neither side gave the court any case law regarding contempt. In my view, I can do no better than cite Justice F. McWatt of this court in the matter of J.B.L. v. K.B.D.[^44] Her Honour wrote in paragraphs 28 to 30:

28 Disobeying the terms of a custody or access order is civil in nature and amenable to writs of attachment or committal pursuant to civil rules of court (R. v. Rupert (1974), 1974 2153 (ON CJ), 16 R.F.L. 325 (Ont. Prov. Ct.) 332. A civil contempt can become criminal contempt when there has been a deliberate, persistent and unlawful disobedience of a specific order (Stupple v. Quinn (1990), 1990 1217 (BC CA), 30 R.F.L. (3d) 197 (B.C.C.A.)].

29 Civil contempt is a quasi-criminal matter and the allegations against Ms. D. must be proved beyond a reasonable doubt (Fisher v. Fisher (2003), 2003 2119 (ON SC), [2003] O.J. No. 976, 2003 CarswellOnt 1170 (S.C.J.)]. The burden of proof rests on the party alleging the contempt (Brown v. Bezanson (2002), 2002 SKQB 148, 27 R.F.L. (5th) 1 (Sask. Q.B.)].

30 In order to find that Ms. D. is in contempt of court, I must satisfy myself, in relation to each of the alleged breaches, of the following things:

1. That the relevant order was clear and unambiguous;

2. The fact of the order's existence was within the knowledge of the Respondent at the time of the alleged breach;

3. That the Respondent intentionally did, or failed to do, anything that was in contravention of the Order [Einstoss v. Starkman (2002), [2002] O.J. No. 4889, 2002 CarsellOnt 4435 (S.C.J.); additional reasons at (2003), 2003 2304 (ON SC), 37 R.F.L. (5th) 77 (Ont S.C.J.); affirmed (2003), 2003 20593 (ON CA), [2003] O.J. No. 3297, 2003 CarswellOnt 3234 (C.A.) at par. 8)];

4. That the Respondent was given proper notice of the terms of the order [Brown v. Bezanson (2002), 2002 SKQB 148, 27 R.F.L. (5th) 1 (Sask. Q.C.); Follows v. Follows, 1998 4629 (ON CA), [1998] O.J. No. 3652 (C.A.) at par. 3].

[239] The order that gave rise to the contempt allegations with respect to the phone calls was my order of September 28, 2011. This order was made on consent. From the evidence, it is clear that the applicant knew about the order before it was actually made. The order is clear and unambiguous in its terms. The applicant deliberately failed to provide a phone call on the Thanksgiving weekend of 2011, and she deliberately failed to provide phone calls for several weeks thereafter.

[240] As it relates to the longer period, the applicant’s stated reason – that she was relying upon the advice of a child psychologist – falls short of a legal justification for withholding telephone access. If the applicant wished to rely upon an opinion of an expert to the effect that such access was harmful to the children, the onus was on her to prove that. She failed to do so.

[241] Counsel for the applicant argued that the evidence did not sustain a finding of contempt. She made no submissions as to penalty. When he made his submissions, the respondent said that he would leave it entirely in my hands. I have decided that the simplest thing to do is to fine the applicant. I am therefore levying a fine of $500.00. This amount will be included in the NFP calculation.

Net Family Property

[242] The equalisation of the parties’ NFP is a reasonably straightforward issue. Both parties filed NFP statements for the trial. Much, but not all, of the data in both statements is identical. However, most of the arguments regarding NFP relate to how to treat certain specific property.

[243] At the time of separation, the parties had a jointly owned matrimonial home located at 61 Alden Square in Ajax. That property was sold in June of 2012. The net proceeds of $6,192.54 are being held in trust by the lawyer who acted on the sale. This property was purchased pursuant to an offer dated January 31, 2004. The offer was signed by both parties. The closing date for the purchase was April 5, 2005 because the home was not built when the offer was made. The respondent alone put up $25,000.00 as a pre-construction deposit. As this deposit pre-dated the marriage, the respondent wishes to claim a date of marriage deduction.

[244] When the applicant testified about this she actually said very little beyond: “It was a new construction home; we purchased it jointly together prior to marriage; and it was finished in June 2005.” She did not deny that the respondent alone put up the deposit monies.

[245] Counsel for the applicant relies upon the fact that the offer was made in joint names as proof of the intention of the respondent to jointly benefit both parties. The parties were not married when this occurred. Therefore, the presumption of resulting trust would apply. Counsel did not ask questions of the respondent regarding his intentions. Therefore, I don’t see how the presumption has been rebutted, but given my analysis set out below, it does not matter.

[246] Counsel also argued that since the asset (the deposit) became in effect the matrimonial home which existed on the valuation date, the respondent is not entitled to the deduction.[^45] I agree.

[247] Counsel for the applicant relies upon the decision of Justice L. Ricchetti in Tailor v. Tailor.[^46] This decision is not exactly on all fours. In that case, the husband was trying to get credit for a down payment given by his parents. Justice Ricchetti allowed the deduction and perhaps by inference said that normally such a deduction would not be allowed.

[248] The decision of Justice J. Poupore in Chuipka v. Chuipka is much more on point.[^47] His Honour said in paragraph 6 “…. Section 4(1) of the Family Law Act specifically excludes the value of the matrimonial home. The Respondent’s down payment was subsumed as at date of marriage in the value of the matrimonial house. This would exclude the Respondent from claiming the amount of the down payment…”. I accept this as good law.

[249] The respondent will not be allowed to deduct his deposit of $25,000.00.

[250] There are two issues regarding the cottage on Manitouwabing Lake. This cottage was owned by the applicant and her siblings on the valuation date. The applicant held a 1/5interest therein. At the time of the marriage in 2004, the applicant held only a 1/6interest. The first and most important issue is whether the cottage qualifies as a matrimonial home as defined in section 18 of the Family Law Act (FLA).[^48] The applicant argues that it does not, and the respondent argues that it does.

[251] In chief the applicant testified that they shared weekends with her siblings throughout the summer but only had one dedicated summer week to themselves. Beyond that, they only went there two or three times in the winter. She summarised it by saying that the use of the cottage by her, the respondent, and the children amounted to “about a dozen times throughout the year”.

[252] When she was cross-examined, the applicant agreed that “yes [they] enjoyed many family visits to the cottage.” As well, she agreed that they “sometimes had full weekends at the cottage”, that they were there “for whole long weekends at times”, and that in the summers, “[we] went mostly to the cottage”. She said further that they might have spent more than one full week there at a time in the summer, overlapping one of the weeks allotted to other members of her family, but that she could not specifically recall doing so. She never directly answered the question put to her by the respondent with respect to the number of weeks spent there at Christmas and March break.

[253] The applicant was not re-examined on this issue and did not call reply evidence relating thereto.

[254] The respondent’s evidence in chief was that the family frequently used the cottage. He said that their family had the use of the cottage for two full weeks every summer, one week at Christmas, one week at the school March break, if they were not on a holiday somewhere else, and almost every summer weekend.

[255] The respondent also testified that he put in a lot of effort helping out with the upkeep of the cottage. He and some of the applicant’s family members re-shingled the cottage roof.

[256] When the respondent was being cross-examined, it was suggested to him that he did not consider “the cottage as an asset of [his] family.” His answer was that since the parties were married, he did consider it a family asset, although he left the decisions up to her and her family. He agreed that he did not directly contribute to the operating expenses of the cottage or the mortgage payments, although he contributed to what he called toys; for example, a wakeboard.

[257] Counsel for the applicant went through the use of the cottage with the respondent almost year by year, starting with 2005. I will not set out the year by year questions and answers herein. I have carefully reviewed the evidence and as a result feel safe in saying that the respondent’s answers did not detract from his evidence in chief in a major way. He agreed that they missed one March break and one summer; otherwise he maintained a regular use as outlined above.

[258] Counsel for the applicant relies upon the decision of Justice D. Ray of this court in Egan v. Burton.[^49] Justice Ray correctly sets out that two questions must be asked to determine whether a particular property qualifies as a matrimonial home. First, was the property ordinarily used by the spouses prior to the valuation date? Second, was the property used as a family residence? In Egan, His Honour concluded on the facts that while the couple spent summers at the cottage owned by the husband, it did not qualify as a family residence because the wife did not treat it as such. Beyond that, His Honour found that the wife had not contributed financially or otherwise to the cottage, except for some housekeeping.

[259] In my considered view, this decision of Justice Ray is rather at odds with the prevailing view of what is required for a cottage to qualify as a matrimonial home.[^50] The crux of Justice Ray’s decision seems to me to be that the wife in that case had not made any financial contribution to the cottage and had done little work there. That is not part of the test. In my opinion, the use by the parties and their children herein, was more than sufficient to qualify the cottage as a family residence.

[260] There was no appraisal of the applicant’s interest in the cottage for either the date of marriage or for the valuation date. The applicant presented a letter of opinion in that regard. The respondent challenged the values contained in this letter of opinion and spoke from the body of the courtroom about his difficulties in attempting to arrange for an appraisal. Counsel for the applicant felt that she could rely on an endorsement made by Justice M. Scott, the case management judge, on February 12, 2014. Her Honour wrote, among other things, on that date:

Within 45 days hereof (April 1, 2014)

1.) applicant will provide letter of opinion re cottage value at d.o.s.

Her Honour wrote nothing about the parties agreeing that the applicant need not obtain an appraisal of the cottage. The order was clearly directed to disclosure more than anything else.

[261] Several times during this trial I said to counsel for the applicant that unless the parties agreed that a letter of opinion would suffice, then the court would require an actual certified appraisal. I did this early on and expected that an appraisal would be forthcoming at some point before the trial was over.. It never was. Although I regret very much that this case will not finish with the release of my reasons herein, I am ordering that the applicant must, within 60 days from the date of the release of my reasons, provide a certified appraisal of the cottage as of the valuation date. I do not require one for the date of marriage because of my determination that the applicant’s interest in the cottage was a matrimonial home.

[262] A somewhat similar issue arose regarding the parties’ pensions. The applicant never valued her pension pursuant to section 10.1 of the FLA. As subsection 10.1(8) clearly states “This section applies whether the valuation date is before, on or after the date on which this section comes into force.” Counsel for the applicant appeared to believe that the respondent accepted her approach, which was to value her client’s pension on the basis of her contributions plus interest. The respondent had his pension valued at $67,891.00, by DAS Actuarial Services. Since I was never actually supplied with a copy of this evaluation, I do not know whether it complies with section 10.1 of the FLA, but I am assuming that it does.

[263] The respondent did say that he was content to include the pension values within the calculation of NFP, but it was clear to me that the respondent did not understand the difference between how the applicant valued her pension and the method required by the FLA.

[264] Putting that aside, counsel for the applicant submitted that it was fine to value her client’s pension on the basis of her contributions plus interest, while valuing the respondent’s pension on an entirely different basis. Again, it was clear from what the respondent said to the court that he did not understand the difference. I very clearly advised counsel that it would not be just or appropriate to value the two pensions in entirely different fashions. I told counsel that she should proceed to have her client’s pension properly valued. I expected that I would receive such a valuation within a reasonable time after the case concluded, but as yet nothing has arrived. As I ordered with respect to the cottage appraisal, the applicant has 60 days to provide the court (and the respondent) with a copy of an actuarial valuation of her pension.

[265] While the parties agreed as to certain amounts which they characterised as adjustments to the equalisation payment, there was a dispute over other amounts. The agreed-upon adjustments total $3,913.31. When the trial started, the adjustments not-agreed-upon included a reimbursement for orthotics which the respondent paid for in December 2010, various deductions from the proceeds of sale for “debts” incurred post-separation, and an amount claimed by the respondent for the destruction/loss of his personal property.

[266] After the applicant testified about the respondent’s claim for an adjustment in relation to $1,515.00 that he had paid for orthotics in December 2010, the respondent accepted that the applicant had not been later reimbursed, and therefore he abandoned his claim in that regard.

[267] The major issue is the adjustment claimed by the applicant for $29,458.37 for increased “debts” post-separation. These included $1,921.36 on a Visa account, $1,639.83 on a chequing account, $15,585.50 on mortgage arrears, and unpaid property taxes in the amount of $10,311.68. The applicant wants the respondent to be responsible for one half of those amounts or $14,729.19. Effectively, the respondent has already paid this amount because all of these debts were paid from the proceeds of the sale of the former matrimonial home. He now wants it back.

[268] In the applicant’s view, the respondent should be responsible for one half of these amounts because he did not contribute in any manner to the upkeep on the matrimonial home from December 2010 until it was sold in June of 2012, and because he did not pay her any child support until June 1, 2012. The respondent’s position is that he was not in a position to contribute anything while he was in Jamaica, incarcerated and awaiting trial or otherwise, during which time he had no income of any kind. He also argued that the applicant was in fact able to pay the expenses from her own income and that she deliberately ran up these debts, while spending her money on herself.

[269] The applicant works for the Royal Bank of Canada (RBC) as a regional sales coach. She has worked at RBC since 1994. Exhibit 14 shows that the applicant’s income in 2010 was $82,417.00. It was $99,379.00 in 2011 and $118,437.00 in 2012 (not including the RRSPs cashed in).

[270] The applicant’s evidence was that her income in December 2010 was approximately $80,000.00 per annum, while the respondent’s was approximately $90,000.00. She testified that she went into “survival mode” in January 2011. She negotiated a deferral of about six months on the mortgage payments with RBC, and when that time was up, she chose to let the mortgage go into default as she knew that it would take some time for the bank to act. She did not pay the municipal taxes. She increased her RBC Visa from $1,929.87 to $3,851.23 and her RBC chequing account overdraft from $2,762.02 to $4,401.85. Although the court was not given the figures, the applicant did use her 2011 bonus to pay some of the mortgage arrears, and she did pay the parties’ joint RRSP loan.

[271] The respondent cross-examined the applicant regarding certain expenditures she made during 2011. During that cross-examination, the applicant agreed that she had made two trips to Florida 2011, when she did some shopping. She bought a 2007 Acura MDX in 2011. The applicant was never specifically asked what these particular expenditures totalled.

[272] As I wrote above, the respondent was held in detention in Jamaica from December 28, 2010, until he was released on bail in May 2011. He was suspended without pay from his teaching job with the Durham Catholic School Board (DCSB) from January 2011 to April 2012, as a result of being criminally charged in Jamaica. During all of that time, he had no income whatsoever. Although he came back to Canada on November 30, 2011, he was not reinstated with pay until April 2012. His first paycheque was April 26, 2012.

[273] From looking at the table of contents in the continuing record, it appears as if the applicant filed four financial statements. Counsel for the applicant did not lead her client through her initial financial statement filed in January 2011 (or her second financial statement of March 2012) in an attempt to demonstrate that the applicant was unable to meet her expenses on her income. Nor did the respondent do so in an attempt to show that the applicant could have managed all of the expenses on her own income. Although I have looked at both financial statements, it is my view that I should be cautious about drawing any conclusions one way or the other. On the other hand, I do know that the applicant was not paying the mortgage or the municipal taxes. That would have reduced her expenses by over $22,000.00 per year.

[274] The argument by counsel for the applicant appears quite simple. Since the respondent owned one-half of the house, he should be responsible for one-half of the expenses. That argument ignores that the respondent had no income between January 2011 and the end of April 2012. It also ignores that the applicant had the benefit of living in the jointly owned property. Neither party put forward a legal argument as to why the respondent should or should not be responsible for one-half of these expenses claimed by the applicant. Since the applicant is the one advancing the claim, she is the one who bears the onus to prove it at law. She has failed to do so and therefore I reject it.

[275] Even if I were to find in favour of the applicant on this point, as I conclude below regarding the division of the contents of the matrimonial home and regarding the respondent’s personal property, one way or the other, the applicant “owes” the respondent a significant amount of money. While I cannot come up with a precise figure, it would very likely more than offset any award to the applicant for her claim for an adjustment of $14,729.19.

[276] There are two last issues of contention with respect to NFP. To some extent, they are related. The respondent is alleging that he did not get an equal share of the household contents, and that he did not get back all of his personal property. The applicant says the opposite, and as well she says that the value that the respondent ascribes to much of the property is significantly too high.

[277] The applicant never testified about how she arrived at her value of $10,000.00 for the whole of the household contents. She did give evidence regarding property taken by the respondent on two separate occasions. The first time was pursuant to my order, made on consent, on September 28, 2011. By the terms of that order, the applicant was to make available to the respondent a specified list of items on October 1, 2011. The applicant itemised some of the things that she put out and which were taken by the respondent’s brother who came twice that morning to pick things up. However, as the applicant told her version of what happened that morning, and as became even more clear when she was cross-examined on this event, to use her own words, she “freaked out.” She did so because she felt that the respondent’s brother was not showing enough sympathy for her, as opposed to worrying about various items of personal property. From all of the evidence, it is clear that the applicant effectively frightened the respondent’s brother away that day and did not allow him to take everything.

[278] The second occasion was when the former matrimonial home was being listed for sale in the spring of 2012. Through lawyers, the applicant asked the respondent what he wanted. He asked for a few items and she agreed. She then left them at the bottom of the driveway for his brother to pick up. When his brother came, he did not take everything. She later put the remaining items in the garage.

[279] The applicant admitted that some of household contents and several items belonging to the respondent were sold at a garage sale, and that some of the respondent’s personal property was destroyed by her son Jacob. Her answers to questions put to her regarding what happened to the respondent’s personal items appeared rather cavalier.

[280] When the respondent was asked by the court how he arrived at the values for the furnishings on his NFP statement, he said that he recalled the specific cost of items; for example, the dining room suite at $7,000.00, the combined bedroom suites at $10,000.00, and electronics at $5,000.00. That evidence was not contradicted by the applicant when she gave reply evidence.

[281] The respondent testified about his personal belongings, destroyed or given away by the applicant, upon which he put a value of $50,135.00. He admitted that he relied upon his memory for the cost of some items. The respondent made a list of these items which became exhibit 43. His evidence was that he did not receive so much as one of them. With respect to what he actually received, the respondent named a few items, including a bed frame, a couch, a broken stereo, a broken tennis racquet, and some sporting equipment.

[282] Putting it all together as best I can, it is clear that the respondent received more of the household contents than he listed, but not much more. With respect to his personal items as set out in exhibit 43, the respondent received next to nothing. I can only guess that the applicant sold, threw out, or otherwise destroyed those items. It may be that she still has some of them. The problem is how to value what the applicant kept and what the respondent did not receive. As inevitably happens, neither side had any expert opinion evidence to back-up her or his own opinion as to value of the household goods and furniture, or his personal property.

[283] I could pick a number out of the air, but that would not be fair to either party. The respondent said in his submissions that he did not care that much about his items of personal property. All he wanted was those items set out at the beginning of exhibit 43 “Children’s Hope Chest Items” and his “Personal Mementos, Files and Documents”. It is my order that the applicant forthwith arrange to deliver these items to the respondent.

[284] Until I have all of the extra information regarding the value of the cottage and the applicant’s pension, I cannot complete the NFP calculations to determine who owes what to whom. When I do so, I will include the fine of $500.00 among the adjustments.

Orders

[285] Order to go as follows:

1. The applicant, Cathy Clayson, is to have sole custody of Emma, born July 7, 2005, and Kaiden, born February 12, 2008.

2. The respondent, Paul Martin, is to have unsupervised access to both children on an increasing basis as follows:

a. Commencing with the weekend of January 9, 2015, the respondent will have the children in his care every other weekend from Friday after school until Monday morning at school. This will continue until the first weekend in April 2015.

b. Commencing with the first weekend in April 2015, the respondent will have the children in his care every other weekend from Friday after school until Tuesday morning at school. This will continue until the end of the school year in June 2015.

i. The respondent will have telephone contact with the children every Thursday in the week following his weekend access and every Wednesday in the week before his weekend access. This call will take place at 7:00 pm.

c. Commencing with the week of Sunday, August 30, 2015, the children will rotate between their parents’ places of residence on a week-about basis. The exchange time will be Sunday at 7:00 pm.

i. Each parent may call the children once per week when they are not in his or her care. The call will take place on Wednesdays at 7:00 pm.

d. Commencing in the summer of 2015, and for each summer thereafter, the respondent will have the children in his care for a minimum of 5 weeks. This will be in blocks of three weeks and two weeks. This time will be uninterrupted, except for telephone access, which will occur on Wednesdays at 7 pm.

e. The respondent may choose the summer weeks and must give the applicant two months’ notice of which weeks he chooses.

f. If the respondent’s work schedule is such that he cannot pick the children up from their school as soon as they have finished, then he may do so at whatever daycare facility or after-school programme they might be attending.

g. The parties will split all school holidays equally, including Christmas, Easter, and March Break. The parties will use a parenting coordinator to determine the days.

h. For Christmas 2015, the respondent will have the children in his care for Christmas Eve and Christmas morning.

3. The respondent shall pay basic child support to the applicant in the amount of $1,346.00 per month, plus an additional $433.00 per month for section 7 expenses, up to and including June 1, 2015.

4. Commencing July 1, 2015, the parties shall calculate child support employing section 8 of the CSG.

5. Commencing February 1, 2015, the respondent shall pay child support arrears of $3,241.00 to the applicant in the amount of $150.00 per month until those arrears are paid in full.

6. The parties must appoint a parenting coordinator within 60 days of the release of these reasons for judgment. Each party will be responsible for paying one-half of the fees. If the parties cannot agree upon who will be the parenting coordinator, a 14B motion may be brought to my attention or to the attention of Justice M. Scott.

7. The parties will communicate via either Family Wizard or Coparently. They will share the costs of the program equally.

8. Even if there is a true emergency, the parties should first attempt to communicate through family members.

9. The applicant may not change the children’s residence with giving the respondent 60 days’ notice in writing.

10. The applicant may not move more than 15 kilometres from her current place of residence without the respondent’s consent or a court order.

11. The applicant may not change the children’s names, without the respondent’s written consent.

12. The applicant may not change the school(s) that the children attend, without the respondent’s written consent.

13. Although the applicant is free to choose who provides daycare or after-school care, she must at all times keep the respondent advised of who is doing so.

14. When the time comes to enrol the children in secondary school, subject to written approval from the respondent, the applicant must enrol the children in the local school.

15. The applicant may not change the children’s doctors or dentist without giving the respondent 60 days’ notice in writing.

16. The applicant must advise the respondent now, if she has not already done so, of the names and particulars of all medical professionals who treat the children.

17. The respondent is entitled to attend school functions, the details of which must be worked out with the parenting coordinator.

18. The applicant may continue to choose who provides daycare and after-school care for the children. She must keep the respondent informed of these choices.

19. The applicant may not enrol the children in any sports or other extracurricular activities without the respondent’s written consent.

20. The respondent may direct the children’s religious education.

21. Annual adjustments are to occur each year on June 1^st^, starting in 2016.

22. Unless there is a true emergency, there is to be no direct communication between the parties except through Family Wizard or Coparently.

23. The respondent may not move any closer to where the applicant lives than he currently does.

24. With regard to the cottage, the applicant must, within 60 days from the date of the release of my reasons, provide a certified appraisal of the cottage as of the valuation date.

25. With regard to the applicant’s pension, the applicant must, within 60 days from the date of the release of my reasons provide the court and the respondent with a valuation of her pension pursuant to section 10.1 of the FLA.

26. The applicant must immediately deliver the items set out in exhibit 43, under “Children’s Hope Chest Items” and “Personal Mementos, Files and Documents” to the respondent.

[286] Counsel for the applicant may serve and file cost submissions, restricted to five pages, exclusive of a bill of costs, by forwarding same to my secretary within ten days of the release of this judgment. The respondent may serve and file his response, restricted to five pages, within seven days thereafter, and counsel for the applicant may serve and file their reply, restricted to five pages, within four days thereafter.

The Honourable Mr. Justice D.R. Timms

DATE RELEASED: April 13, 2015

CORRIGENDA

1. Citation – the citation number has been changed from 4124 to 7530.

[^1]: On December 29, 2014, I was informed that the applicant had filed another 14B motion. In keeping with my endorsement of October 28, 2014, this motion needs to be first seen by Justice M. Scott. I have not looked at it, and will not, until after the release of these reasons for judgment.

[^2]: She had gone to Jamaica in response to a call from the sister on December 23, 2010.

[^3]: The applicant said that she told the respondent about this trip on the first day that he was back at work. Nothing turns on that one way or another.

[^4]: The respondent was the coach of Emma’s team

[^5]: The parties had a joint account bank account, the applicant had a sole bank account, and the respondent had one with his parents. Both parties contributed an equal amount of money to the joint account.

[^6]: That road was Flamingo Beach Road. Several aerial views of that road and the surrounding area, taken from Google Earth became exhibits at trial. During her argument, counsel for the applicant advised the court that all of the Google maps came from a version dated November 27, 2010.

[^7]: She also called it her white sweater.

[^8]: Mr. Russell gave viva voce evidence at the criminal trial and via Skype in this trial.

[^9]: I do not know if either of these women testified at the criminal trial.

[^10]: The applicant said that she gave the passports to the ladies in the back of the taxi, but then when her lawyer asked her questions, the words she used were “your passport”. However Detective Sangster confirmed getting both passports from the ladies who were in the back of the taxi.

[^11]: Using the same Google map as was used by the applicant’s counsel, and the scale thereon provided by Google, I estimate that the linear distance from the point in the road where the applicant said the car stopped, to the house with the red roof, would be just slightly over 100 metres. One can see from the pictures that form exhibit 32 that it appears quite close.

[^12]: Again using the same Google maps, I could not see anywhere in the vicinity of where the incident occurred that was any closer to the beach than where the respondent stopped the car.

[^13]: Counsel actually brought a knife to court which looked like the knife in the picture. I declined to have it made an exhibit.

[^14]: Assuming that the location marked with an X by the applicant on exhibit 4 is the spot where the car stopped, it is in fact quite close to the beach.

[^15]: I believe that I am entitled to take judicial notice of this based, among other things, on my ten years’ experience as a judge on the Ontario Provincial Court. At the end of the day, the judge presiding at a preliminary inquiry does not weigh credibility at all, but only determines whether “there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty” - see United States of America v. Sheppard 1976 8 (SCC), [1977] 2 S.C.R. 1067. This is a very low threshold.

[^16]: Mr. Martin acknowledges he was not happy with the state of his marriage. However, he felt that for the sake of the children’s emotional development it was important to keep the family together. He believed they could still work on their marriage; thus he was resistant to considering separation or divorce. In the months leading up to the 2010 Jamaica trip, Ms. Clayson reports that she signalled clearly to Mr. Martin that the marriage was over and they needed to work out a separation. In her view, they would try to have homes in the same neighbourhood to make it easy for the children to go back and forth. In Mr. Martin’s view, he did not believe a separation/divorce was inevitable and the threats of separation were part of the ups and downs in the marriage and his wife’s moods. One of his major complaints and source of marital conflict was family finances. He felt Ms. Clayson spent money beyond their means. Prior to the Jamaica trip, he replaced her with the children’s names as a beneficiary for his life insurance and pension which he claimed related to not trusting her with money.

[^17]: This would translate to 1,254 feet using 19 chains, or just under 400 metres.

[^18]: The applicant was seen by a Dr. Minet on January 3, 2011, upon her return to Canada. He wrote a brief report dated that day. Dr. Minet was available to give evidence but was, according to counsel for the applicant, no longer competent. As a result counsel sought to have the report entered into evidence pursuant to the principled approach. The respondent did not entirely follow the argument in that regard and ultimately left it up to the court. I allowed the report to be admitted into evidence as both reliable and necessary.

[^19]: The palmar portion of the thumb is the fleshy, inner portion, or the equivalent of the palm side of the hand.

[^20]: Much later on, I learned that the applicant had hired private counsel, Mr. Nathan Robb, to act for her in Jamaica. Mr. Robb sat at the table with the Crown counsel throughout the criminal trial. He is noted, perhaps in error, as Crown counsel, on the application for leave to appeal from the dismissal of the charges against the respondent. A complainant in Canada would not be able to retain private counsel, who would then sit with Crown counsel throughout the trial, more likely than not feeding information to the Crown.

[^21]: See Frost and Hale (1964), 48 C.A.R. 283. In that case, Lord Chief Justice Parker said at page 291: “… it is quite clear today that it has become the proper practice for a judge not necessarily to read out to the jury the statement made by the prisoner from the dock, but to remind them of it, to tell them that it is not sworn evidence which can be cross-examined to, but that nevertheless they can attach to it such weight as they think fit, and should take it into consideration in deciding whether the prosecution have made out their case ……”

[^22]: In Von Starck v. The Queen, 2000 UKPC 5, [2000] 1 W.L. R. 1270, the Judicial Committee of the Privy Council of England heard an appeal from the Court of Appeal of Jamaica. The right of an accused to make a dock statement was recognized at para. 11, though Lord Clyde noted that dock statements are inferior to oral evidence under oath. In Dennison v. R., [2014] JMCA Crim 7 at para. 5, the Court of Appeal of Jamaica held that “the right of a defendant to make an unsworn statement remains an important feature of the system of criminal justice in this country.” At para. 49, the Court held that, “further, in considering whether the case for the prosecution has satisfied them of the defendant’s guilt beyond a reasonable doubt, and in considering their verdict, they should bear the unsworn statement in mind, again giving it such weight as they think it deserves.” With regard to the view of the Judicial Committee of the Privy Council, the Court held at para. 51, that, “for so long as it remains a right available to defendants, it is incumbent on trial judges to direct juries as to its effect fully in accordance with the authorities.”

[^23]: Insco Sarnia Ltd. V. Polysar Ltd. (1990), 45 C.P.C. (2d) 53; R. v. Hawkins, 1996 154 (SCC), [1996] 3 S.C.R. 1043, [1996] S.C.J. No. 117; R. v. Parrot, 2001 SCC 3, [2001] 1 S.C.R. 178; R. v. Letourneau (1994), 1994 445 (BC CA), 87 C.C.C. (3d) 481.

[^24]: 1990 77 (SCC), [1990] S.C.J. No. 81, 59 C.C.C. (3d) 92.

[^25]: 1996 154 (SCC), [1996] 3 S.C.R. 1043, [1996] S.C.J. No. 117.

[^26]: 1992 79 (SCC), [1992] 2 S.C.R. 915, [1992] S.C.J. No. 74.

[^27]: Ibid at 79.

[^28]: Two panicky people in a car, one of them possibly hysterical, driving fast along a highway only once previously driven on in that direction, with one of those people bleeding profusely from the neck, debating what to say to the authorities.

[^29]: See John Sopinka, Sydney N. Lederman & Alan W. Bryant, The Law of Evidence in Canada, 4th ed (LexisNexis Canada Inc., 2014) at s. 6.436.; R v. White, 2011 SCC 13, [2011] 1 S.C.R. 433; R v. White, 1998 789 (SCC), [1998] 2 S.C.R. 72; R v. O’Connor (2002), 62 O.R. (3d); R v. Levert (2002), 2001 8606 (ON CA), 159 C.C.C. (3d) 71.

[^30]: I remain extremely puzzled as to why counsel for the applicant would send this article to Dr. Pickup. The headline reads: Circus court to blame for husband’s acquittal in Jamaica: Ontario woman. The sub-headline reads: Canadian who survived knife attack say she was painted as a liar in the trial that acquitted husband.

[^31]: Since Dr. Jaffe was technically the court’s witness, both parties were entitled to cross-examine him.

[^32]: See, among others, paragraphs [55] to [59] of my endorsement.

[^33]: Kaplanis v. Kaplanis (2005), 2005 1625 (ON CA), 249 D.L.R (4^th^) 620, [2005] W.D.F.L. 1005.

[^34]: See Madott v Macorig, 2010 ONSC 5458, [2010] O.J No. 4371 (S.C.J), where an order was made for joint custody in the form of parallel parenting in circumstances where there was conflict between the parties.

[^35]: As I said in my reasons released on August 6, 2014, the reality is that the respondent knows where the applicant lives. In addition to what I said about that, I noticed that the applicant had included her C.V. in her document brief. That appears to show her current address.

[^36]: John Sopinka, Donald Houston & Melanie Sopinka, The Trial of An Action, 2nd ed (Butterworths, 1998) at 170.

[^37]: The respondent’s position, and thus his income, with the Durham Catholic School Board was reinstated effective April 26, 2012.

[^38]: When it comes to calculating any arrears for the period starting June 1, 2014, the monthly reduction of $4.00 in basic child support must be taken into account.

[^39]: Child Support Guidelines (Ontario), O. Reg. 391/97, as am. Where a parent or spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account: (a) the amounts set out in the applicable tables for each of the parent or spouses; (b) the increased costs of shared custody arrangements; and (c) the conditions, means, needs and other circumstances of each parent or spouse and or any child for whom support is sought.

[^40]: Contino v. Leonelli-Contino, 2005 SCC 63, [2005] S.C.J. No. 65.

[^41]: By “true emergencies” I have in mind something that requires immediate medical treatment of one of the children.

[^42]: The respondent was to have telephone access on Wednesday and Sunday evenings at 7:00 pm and once a week at the SAC for two hours. The orders setting this out were dated September 28, 2011 and December 15, 2011, respectively.

[^43]: Kassay v. Kassay, 2000 22444 (ON SC), 11 R.F.L. (5th) 308, (2000) O.J. No. 3373 at para 18.

[^44]: 2009 14788 (ON SC), [2009] O.J. No. 1342.

[^45]: “Net family property” means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting, (a) the spouse’s debts and other liabilities, and (b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage.

[^46]: 170 A.C.W.S. (3d) 366, [2008] O.J. No. 3900.

[^47]: 2001 CarswellOnt 2672.

[^48]: Family Law Act, R.S.O. 1990, c. F.3. as am.

[^49]: 2013 ONSC 3063, 32 R.F.L. (7^th^) 226 (Ont S.C.J.), [2013] O.J. No. 2408.

[^50]: See Ethier v. Cyr, 2011 ONCA 387, where the regular usage of the cottage during the marriage rendered it to be a matrimonial home within the meaning of the Family Law Act thereby disallowing the husband to exclude it from his net family property; Hartmann v. Hartmann, 2004 CarswellOnt 5753, where the trial judge determined that the cottage was clearly an alternative residence for the family and should be considered a matrimonial home, a decision that was also upheld on appeal; and Debora v. Debora, 2006 40663 (ON CA), 2006 CarswellOnt 7633, where the Court of Appeal noted that the trial judge’s conclusion that the cottage was “ordinarily occupied by the person and his or her spouse as their family residence” was not challenged on appeal.