What is the test for indemnifying successful litigants for the cost of litigation?

The rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour of litigants: (Serra v. Serra, 2009 ONCA 395 (CanLII), 66 R.F.L. (6th) 40).

A central trial issue involved the determination of the Respondent’s income for child and spousal support purposes. On that important front, the Applicant was the more successful party, exceeding her offers to settle. Moreover, she had an unfair uphill battle in that regard because the Respondent unreasonably declined to make any real effort to value his business interests. I find the Respondent’s failure to value assets under his control to be contrary to the rule in Conway v. Conway, 2005 CanLII 14136 (ON SC), 16 R.F.L. (6th) 23, 2005 CarswellOnt 1677 (Sup. Ct. J.), and an example of unreasonable litigation conduct relevant to costs. The Respondent’s challenge to the Applicant to unilaterally marshal what was required to prove the value of his business interests significantly complicated the determination of his income for support purposes.