James H. Herbert

The respondent father brought a motion for a nesting arrangement for the parties' four-year-old child.

The applicant mother opposed and cross-moved for primary care and limited contact, also seeking an adjournment which was denied due to the toxic home environment.

The court found the mother's conduct unsupportive of the child's relationship with the father, citing her accusatory communications and breach of a prior order regarding video-taping.

The father's proposed nesting arrangement was granted, effective immediately, and the mother's cross-motion for primary care was adjourned.

The issue of the mother's contempt for breaching a court order was referred for further directions.

The appellant appealed orders from the Superior Court of Justice (Family Court Branch) dated February 23, 2016 and April 18, 2016.

The appellant sought relief in the family court proceeding that was contingent upon successfully setting aside an outstanding mortgage in a separate fraudulent conveyances action.

The motion judge properly declined jurisdiction, finding that the motion should have been brought in the fraudulent conveyances action rather than in the family law proceeding.

The appeal was dismissed.

This is a costs decision following a two-day family law trial concerning custody, access, and child support of a minor child.

The applicant sought joint custody and shared parenting, while the respondent sought sole custody and retroactive child support.

The respondent was largely successful at trial.

The court awarded costs to the respondent on a full recovery basis in the amount of $7,459.95, finding that the applicant's positions on all issues were unreasonable, he failed to provide adequate financial disclosure, and the respondent's offer to settle was as good as or more favourable than the final order obtained.

This was a family costs decision arising from an application to review child support despite a separation agreement requiring mediation first and then arbitration for reviewable disputes.

Both parties ignored the mandatory dispute resolution process without a written amendment to the agreement, and neither side achieved success on the merits in court.

The court held that Rule 18 of the Family Law Rules did not apply and that, while Rule 24 presumptively favours a successful party, there was no successful party here.

Taking into account the parties' unreasonable decision to litigate and the absence of costs endorsements at the case conferences, the court awarded the respondent wife limited all-inclusive costs.

Following a two‑day civil trial, the court determined the issue of costs after the parties were unable to agree.

Both sides argued that they had beaten their respective offers to settle, but the court found neither offer engaged the cost consequences under the Rules of Civil Procedure.

The plaintiff was entitled to costs on a partial indemnity basis throughout.

However, the court reduced the amount sought due to concerns about the hourly rate claimed, the matter having been suitable for the Simplified Procedure, and duplication arising from multiple legal professionals working on the file.

The court fixed costs at $12,500 plus HST and undisputed disbursements.

The plaintiff brought an action for libel against the defendants regarding an article published in a South Korean newspaper and on its website.

The defendant author argued the action was statute-barred under the Libel and Slander Act and the Limitations Act, 2002, and that the words were not defamatory.

The court found that the notice and limitation provisions of the Libel and Slander Act did not apply as the newspaper was not printed and published in Ontario, and even if they did, the action was commenced in time based on the discoverability principle.

The court held the article was defamatory and the author's conduct was reckless and malicious.

The plaintiff was awarded $12,000 in general damages, $5,000 in punitive damages, and a permanent injunction.

The appellant appealed a spousal support order following a second trial that awarded the respondent $1,900 per month in indefinite spousal support and ordered payment of costs.

The appellant argued the trial judge made numerous factual errors, including findings relating to the respondent’s employment decisions, credibility, and entitlement to compensatory support.

The court held that the trial judge’s factual findings, including that the respondent’s decision to leave employment and relocate was reasonable and that she suffered economic disadvantage due to the traditional marriage roles, were supported by the evidence.

Applying principles of appellate deference to support determinations, the court found no misapprehension of evidence or error in law.

The compensatory support award and costs order were therefore upheld.

This is a judgment on a retrial of an application to vary spousal support provisions in a separation agreement dated April 29, 1997.

The applicant sought variation of spousal support effective July 1, 2009, while the respondent opposed the claim and sought termination of spousal support as of 2005 with repayment of all amounts paid since that time.

The court found a material change in circumstances based on the substantial increase in the respondent's income and the termination of child support.

The applicant was found to be entitled to variation on contractual, non-compensatory (need-based), and compensatory grounds.

The court ordered spousal support of $1,900 per month commencing July 1, 2009, of indefinite duration, recognizing the applicant's diminished earning capacity resulting from her assumption of domestic and child-care responsibilities during the marriage.

This is a four-day crown wardship trial concerning a child (J.1) aged 1½ years.

The Children's Aid Society of Toronto sought crown wardship with no access for purposes of adoption.

The maternal grandmother opposed this and sought placement of the child in her care.

The mother filed an answer but did not participate in the trial.

The court found the child to be in need of protection under the Child and Family Services Act and determined that crown wardship with no access was in the child's best interests, despite the maternal grandmother's offer to provide care.

The court considered the maternal grandmother's history with child protection agencies, her pattern of transience, changing family constellation, and the risks associated with placing an additional child in her already high-needs household.

The appellant appealed a costs order made by the trial judge.

The Court of Appeal found that the trial judge erred in concluding that the respondent's Offer to Settle was better than the result achieved after trial, as the trial judge failed to factor in the effects of the respondent's income tax appeal.

The costs order was set aside and the matter of costs was remitted to the trial judge if the parties could not resolve it themselves.

The appellants appealed the judgment of the Superior Court of Justice regarding their liability.

The Court of Appeal dismissed the appeal, finding that the trial judge's findings of fact were supported by the evidence and that she reached the correct result.

Costs were awarded to the respondent in the amount of $10,000.

The appellant husband appealed a spousal support order of $1,800 monthly for ten years, arguing the respondent wife had waived support in their marriage contract.

The motions judge found the waiver resulted in unconscionable circumstances under s. 33(4) of the Family Law Act, as the husband had required the wife to quit her job as an exotic dancer, leaving her in poverty while he maintained a wealthy lifestyle.

The Divisional Court dismissed the appeal, finding the motions judge properly considered the wife's lack of employment prospects, her immigration status, and the unconscionable result of the contract, and did not err in ordering ten years of support.