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Did Husband Try to Kill Wife on Tropical Holiday? If So, Should He Be Denied Access to the Kids?

Written by Russell Alexander / (905) 655-6335

Did Husband Try to Kill Wife on Tropical Holiday? If So, Should He Be Denied Access to the Kids?

It goes without saying that Family Law cases come in all shapes and sizes, and that there are some very interesting ones out there. However, it is not often that a Family Court has to consider whether the elements of a murder plot were in place. This was the court’s task in Clayson-Martin v. Martin.

In an almost 300-paragraph judgment, the court examined in sometimes-excruciating detail the evidence relating primarily to a holiday to Jamaica that the couple, who were married 6 years at the time, took in December of 2010.

The determination was directly relevant to the couple’s separating and divorce issues, because the wife wanted to bar the husband from having custody – or even access to – their two children, on the basis that he tried to kill her.

The court heard evidence that during the marriage the conflict between the couple had escalated, due to their very different personalities and approaches to parenting. By 2010 the wife had effectively concluded that the marriage was over.

Nonetheless, the husband began to plan a trip to Jamaica in circumstances that the wife thought were suspicious, and she testified (in her view) that he was obviously planning at the time to kill her there. His behavior included shopping for uncharacteristically dark suits that she felt he was planning to wear to her funeral, his sudden installation of a lock on the closet in their shared bedroom, his removal of her as a beneficiary of his teacher’s pension, and his failure to include her upcoming birthday in his daytimer (suggesting that he did not expect her to be around).

Still, she agreed to go on vacation, which she described after-the-fact as involving remoteness and minimal interaction, with meals eaten in silence and each of them going off to do their own separate activities.

The court heard evidence that the husband pressed the wife to go with him to a particular spot featuring an outcropping where he thought it would be nice to take pictures of the resort. They ended up on an isolated road where the husband, who was driving, pulled over. From that point in the narrative, the court heard conflicting stories: The wife described the husband as trying to strangle her and cutting her with a knife on the neck, ostensibly because he thought she had cheated on him. The husband, in contrast, described that a heated argument developed when they stopped at the outcropping; he claimed it was actually she who came at him with a knife. In his version, she sustained an accidental wound to her own neck when he tried to push her knife-wielding hands away from him.

After poring through the conflicting evidence in great detail, the court found that both parties had been less-than-truthful in their evidence; for example, it concluded that the wife’s testimony about the purportedly tense and distant days leading up to the knifing incident were actually untrue. As the court put it, the wife:

…, 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 [husband] to kill her, rather than face a separation.

The court also heard evidence from other witnesses, including police and bystanders. In the end – and as it related particularly to the narrow question of custody and access – the court said:

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.
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 [husband] planned to go there to kill the [wife].

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

In short: The court held the evidence, on all the balance of probabilities, was not enough to sustain the conclusion that the husband intended to kill the wife in Jamaica. Furthermore, and after considering the reports of various experts, it concluded that any kind of parenting that required joint decision-making, frequent consultation, or anything beyond minimum contact between the parents, would be inappropriate. Instead, the wife was to continue to have sole custody (as she has been doing for the past four years), but that there should be strict conditions on her custodial powers. The husband was likewise given access to the children on a specified scheduled and on defined terms.
For the full text of the decision, see:

Clayson-Martin v. Martin, 2014 CanLII 773)26 (ON SC)

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.