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Cathy Lee Clayson is photographed at her Ajax, Ontario home on Dec. 21, 2011. Her throat was slashed in an attack in Montego Bay, Jamaica. Her husband, Paul Martin, was charged with attempted murder after the attack, but he was acquitted by a Jamaican jury.

Peter Power/The Globe and Mail

An Ontario Superior Court judge says he cannot determine whether an Oshawa-area schoolteacher slashed his wife's throat while on vacation in Jamaica in 2010, or whether she attacked him first and ended up injured.

In a decision dated Dec. 30, Justice Roger Timms rules that as a result, Paul Martin, 47, should get equal and unsupervised access to the couple's two children, aged 9 and 6.

But Mr. Martin's estranged wife, 38-year-old bank employee Cathy Clayson, has since retained high-profile lawyer Marie Henein – who also acts for former CBC host Jian Ghomeshi – to argue an appeal alleging that Justice Timms was biased against her.

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The bizarre story dates back to Dec. 23, 2010, when Ms. Clayson alleges that on the last day of a Jamaican getaway planned as their marriage was falling apart, Mr. Martin drove her to a spot along a deserted road and slashed a 10-centimetre gash in her throat with a hunting knife.

Mr. Martin at first claimed to Jamaican police that the couple was robbed, something Ms. Clayson acknowledged telling him to do in the frantic minutes after the incident. He later changed his story and alleged she attacked him first and in the struggle injured her own throat. He was acquitted by a Jamaican jury in 2011. The knife was never found.

Last year, Ms. Clayson took her husband to Ontario Superior Court, seeking a divorce, $350,000 in damages, an order blocking him from seeing their children and a declaration in civil court that he had tried to kill her that day in Jamaica. During a tense, 20-day trial in an Oshawa courtroom, Mr. Martin, who had no lawyer, cross-examined Ms. Clayson himself.

In his decision, Justice Timms ruled that even with the civil court standard of proof of a "balance of probabilities" – less stringent than a criminal court's "beyond a reasonable doubt" – he could not determine what happened.

"I cannot find even on a balance of probabilities that [Mr. Martin] attacked [Ms. Clayson] … as described by her," the judgment reads. "If anything, the evidence tilts in the opposite direction. In the final analysis, I am not prepared to make a finding either way."

Justice Timms, who did also award sole custody of the children to Ms. Clayson, said he doubted both her and her husband's accounts.

The ruling focuses on the details of Ms. Clayson's version of events. Justice Timms concludes it was "impossible" for Ms. Clayson to sustain a cut on the inside of her thumb, as opposed the outside, as she covered her neck with her hand as her husband allegedly slashed at her a second time. Ms. Clayson also testified that she reached into the back seat of the couple's rented car and locked one of the back doors. Justice Timms's ruling points to evidence presented at the Jamaican trial was that no blood was found in the back seat area, despite the fact that she was bleeding from her neck.

In a notice of appeal filed with the Ontario Court of Appeal dated Jan. 5, Ms. Clayson's lawyers allege that Justice Timms was biased against their client and that the judge "appeared personally invested" in the case. The notice of appeal alleges that Justice Timms "misapprehended material facts" and "minimized and justified the numerous inconsistencies and exaggerations" in Mr. Martin's evidence.

A lawyer for Ms. Clayson declined to comment.

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