Tracy Garton

This is a costs endorsement following the dismissal of an appeal and a motion to introduce fresh evidence brought by the appellant.

The respondent sought costs, but the appellant failed to file submissions.

The Court of Appeal fixed the costs of the appeal and motion for fresh evidence, including proceedings in the Divisional Court, at $17,000 on a partial indemnity basis, payable by the appellant to the respondent.

The appellant, Jason Sutton, appealed a family law judgment and associated costs order made in favour of the respondent, Alison Sutton, after a trial.

The trial judge awarded the respondent an equalization payment, lump sum spousal support, and costs, secured by a charge on the matrimonial home.

The appellant challenged the trial judge's factual findings regarding the respondent's imputed income, the use of a "list" in determining spousal support, and the costs award, and sought to introduce fresh evidence.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings, no error in principle in the costs award, and denied the fresh evidence application, reiterating that it is not the role of the appellate court to retry the case.