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Digest of the Week — Best Interests of the Child

Clayson-Martin v. Martin |
2015 CarswellOnt 13453 |
Ontario Court of Appeal

Family law | Custody and access | Factors to be considered in custody award | Best interests of child generally | Miscellaneous

Domestic violence — Parties separated in 2010, after six years of marriage, as result of incident which occurred in Jamaica — Each party alleged that at end of vacation, while on deserted road from which husband had wanted to photograph their hotel, one attacked other person with knife — Husband was tried on criminal charges in Jamaica, and was acquitted — Wife brought action for damages for assault and battery, permanent restraining order, sole custody, child support and equalization of property — According to wife's evidence, husband slit her throat, forced her into vehicle after she attempted to flee, strangled her and then drove 17 kilometres before she was able to jump from moving vehicle — According to husband's evidence, wife was aggressor on road in Jamaica, where she attacked him with knife and he assumed that she sustained wound on her neck by her own hand when he, in self-defence, pushed her hand bearing knife away from her — Trial judge granted wife sole custody of children and granted husband unsupervised access — Wife appealed — Appeal allowed; decision set aside — Trial judge's failure to consider full range of factors affecting best interests of children also constituted reversible error — Access changed from twice per week during day with supervision, always returning to wife's home overnight, to immediate every-other-weekend access, from Friday to Monday, without any requirement for supervision — Trial judge's changes were dramatic — There was no discussion of how children might be expected to cope with dramatic changes to their everyday lives that trial judge ordered — Nowhere in his reasons did trial judge address various factors as required by s. 24(2) of Children's Law Reform Act — There was no consideration of issue of domestic violence, or how, if at all, it should affect proposed arrangements.
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