Routkovskaia v. Gibson

2020 BCCA 29 Routkovskaia v. Gibson

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Routkovskaia v. Gibson, 2020 BCCA 29 Date: 20200124 Docket: CA46228 Between: Olga Routkovskaia Appellant (Respondent) And Michael Gibson Respondent (Applicant) Before: The Honourable Madam Justice Garson (In Chambers) On appeal from: An order of the Supreme Court of British Columbia, dated June 19, 2019 (Routkovskaia v. Gibson, 2019 BCSC 2186, New Westminster Docket E56257). The Appellant, appearing in person (via teleconference): O. Routkovskaia The Respondent, appearing in person: M. Gibson Place and Date of Hearing: Vancouver, British Columbia January 9, 2020 Place and Date of Judgment: Vancouver, British Columbia January 24, 2020 Summary: The respondent applies for directions as to whether the appellant requires leave to appeal. He also applies for an extension of time to file and serve his factum. The appellant applies for access to the recording and unedited transcript of the judge's oral judgment in the court below. Held: With the exception of the application for an extension of time, the applications are dismissed. With respect to the respondent's application for directions, this Court no longer entertains applications for directions as to whether leave to appeal is required. It would appear, however, that leave is not required. The respondent's application for an extension of time is granted. With respect to the

appellant's application, she must follow the procedure set out in the court below for access to the records. Reasons for Judgment of the Honourable Madam Justice Garson: Applications [1] There are several applications before me in this high conflict family case. [2] The first application is Mr. Gibson's application for directions as to whether Ms. Routkovskaia requires leave to appeal an order of a Supreme Court judge dismissing an appeal from a Provincial Court judge on the grounds that the order was an interim order from which there is no appeal: s. 233 of the Family Law Act, S.B.C. 2011, c. 25 [FLA]. [3] The second application before me is Ms. Routkovskaia's application for access to the court recording of the judge's oral judgment, as well as a prepared transcript (unedited) of his reasons. She says the judge edited his reasons in an unauthorized manner. [4] The third application before me is Mr. Gibson's application for an extension of time to file and serve his factum. [5] For the reasons that follow, Mr. Gibson's application for directions and Ms. Routkovskaia's application for access to the records below are dismissed. Mr. Gibson's application for an extension of time to file and serve his factum to February 18, 2020 is granted. Background [6] The underlying issue in this appeal is an access and custody dispute. The parties have a child, born in 2008. [7] On November 8,

2010, Judge Steinberg of the British Columbia Provincial Court ordered that Mr. Gibson have weekly access visits with the child. [8] On September 14, 2012, Judge Buller Bennet of the Provincial Court made an order by consent that contained an access schedule for Mr. Gibson and provided that the parties have joint guardianship. The application and trial leading to the order in question [9] On August 3, 2016, Mr. Gibson applied for an order in the British Columbia Provincial Court for full custody of their child. Specifically, the application asked that the November 2010 access order be replaced. In his written application, Mr. Gibson wrote: "Access - Full Custody - I believe my son is living in unacceptable conditions and is not being taken care of." [10] On October 7, 2016, Ms. Routkovskaia counterclaimed for child support, retroactive support, and a protection order. Ms. Routkovskaia asked for a protection order due to Mr. Gibson's "anger issues". [11] From November 2017 to September 2018, a trial concerning the child took place over 14 days in Provincial Court. The September 2018 Order [12] On September 7, 2018, at the conclusion of the trial, Judge Steinberg made an order that Mr. Gibson and Ms. Routkovskaia have joint guardianship of their child (the "September 2018 Order"). This order provided, inter alia, that the primary residence of the child will be with Ms.

Routkovskaia, an access schedule for Mr. Gibson that increased access over the previous order, that each parent should attend counselling, and that each parent should prepare a list of three things that have improved between them for report at the review. The order provided for a review to take place in April of 2019. [13] On October 16, 2018, Ms. Routkovskaia appealed this order to the Supreme Court of British Columbia pursuant to s. 233(1) of the FLA. In her Notice of Appeal, Ms. Routkovskaia alleges that the Provincial Court judge made errors of law by improperly considering the best interests of the child and by incorrectly assessing family violence. Her Notice of Appeal also alleges an error of jurisdiction in the requirement to report three things that have improved between the parents. [14] On April 16, 2019, Judge Steinberg heard the scheduled review of the September 2018 Order. At this hearing, Judge Steinberg stated the following: It's hard to call what I did in September a final order because if you read the order it's coming back today for a review of its terms and any changes that may be necessary. That doesn't sound like a final order. You're free to appeal it. I don't have the slightest hard feeling about that. I don't think any, the less or more of you, for it. You have an absolute right to appeal. So you know, maybe you'll be successful, maybe you won't. [15]

The order under appeal from the Provincial Court provides as follows: 1. The Applicant, Michael E. Gibson ("Mr. Gibson") and the Respondent, Olga Routkovskaia ("Ms. Routkovskaia") shall have joint guardianship of the child ("the Child"); 2. Primary residence of the Child shall be with Ms. Routkovskaia; 3. Mr. Gibson shall have parenting time with the Child every second weekend from Thursday to Monday morning, the Child will be picked up from school or after school program on Thursday and returned to school Monday morning; 4. If there is a Professional Development day or statu[to]ry holiday following the weekend of Mr. Gibson's parenting time with the Child, Mr. Gibson will have the Child from Friday to Tuesday. The Child will be picked up from school or after school program on Friday and returned to school on Tuesday morning; 5. Mr. Gibson shall have telephone access with the Child 1 time a week. Each call is not to exceed 15 minutes and the Child is to be permitted to call his father, Mr. Gibson anytime the Child wishes; 6. Mr. Gibson's calls will be on the Thursday before the weekend the Child is not with Mr. Gibson and on the Tuesday of the following week; 7. Each parent is to treat the other with courtesy and respect and will limit communication to factual information necessary for the other parent's care of the Child; 8. Each parent will advise the other of any medical,

dental or similar appointments; 9. Each parent is to notify the other at the earliest possible opportunity of their plans to travel outside the country and if written permission is required for that travel the other parent is to immediately supply that written permission unless there is a good reason not to; 10. Subject to further Court Order, for the Child's school winter break and spring break, each parent is to have alternating weeks, the week is to be scheduled so that it does not interfere with the overall cycle of the exchanges; 11. Mr. Gibson's parenting time during the summer will [be 2] weeks in July and 2 weeks in August; 12. The Child will be with Ms. Routkovskaia during the day of Mother's Day and with Mr. Gibson on Father's Day. Pick‑up and drop‑off will be by Mr. Gibson from 10:00 am to 7:00 pm; 13. Any changes that need to be made shall be reviewed during April of 2019; 14. Mr. Gibson, Ms. Routkovskaia and the Child shall each attend counselling, for the parents counselling is to be focussed on improving communication and for the child counselling is to be focussed on how to cope with differing parenting styles; 15. Each parent is to prepare a list of three things that have improved between them for the period from this date until the appearance in April 2019 and present that list to the Court at that appearance. [16] Her entitlement to appeal turns on the

question of whether Judge Steinberg's order is final or interim. If Judge Steinberg's order is interim there is no right of appeal, pursuant to s. 233(1) of the FLA: 233 (1) A party may appeal to the Supreme Court an order of the Provincial Court made under this Act, except an interim order. [Emphasis added.] [17] Ms. Routkovskaia appeals from the Order of Justice Ball on the ground that he erred in determining the order was interim. The Supreme Court Appeal [18] On June 19, 2019, a hearing was held in British Columbia Supreme Court Chambers before Justice Ball. Mr. Gibson took the position at the hearing that the September 2018 Order of Judge Steinberg was an interim order. [19] Following the hearing, on June 19, 2019, Justice Ball ordered that the application of Ms. Routkovskaia be dismissed because it was an interim order. The reasons for judgement are brief (2019 BCSC 2186). Justice Ball said: [2] I have reviewed this transcript with some care, particularly the final portion of the transcript. Upon that review and reflecting on the comments from Ms. Routkovskaia, and the rather more brief comments from Mr. Gibson, I am satisfied, based on that review, that this was not a final order and was never intended to be a final order. [3] The recorder had difficulty recording reasons because there were often two persons speaking. What is clear from the transcript is that there was a

conversation between Ms. Routkovskaia and Judge Steinberg. Judge Steinberg is a very experienced member of the court, he would not have tolerated the kind of consistent interruptions which took place here while he was giving reasons. It is difficult enough to give reasons without being repeatedly interrupted with references to bits of evidence and statements to the effect that "I disagree with this, and I disagree with that". This is simply a conversation intending to lead to a further hearing which occurred and not a final order. [4] The parties subsequently appeared again in front of His Honour in the following April to continue the proceeding. The proceeding in April was not before this court on appeal. That second hearing however is inconsistent with there having been a final order on September 7, 2018. [5] There is no basis for an appeal of an interim order here, and because this is an interim order and not a final order, I am dismissing this appeal now. [6] Each party will bear their own costs. [20] Ms. Routkovskaia now seeks to appeal the order of Justice Ball to this Court. Analysis [21] Mr. Gibson applies for directions as to whether Ms. Routkovskaia has a right to appeal. As of May 8, 2017, this Court no longer entertains applications for directions as to whether leave to appeal is required in a particular matter (Commencing an Appeal When Uncertain if Leave to Appeal

is Required (Civil Practice Directive, 8 May 2017)). [22] Even though this Court no longer gives directions, I would observe that it appears leave would not be required in any circumstance of this case. If the initial order was an interim order, there lies no right to appeal that order at all (FLA, s. 233). If it was a final order, Ms. Routkovskaia would be able to appeal as of right (Court of Appeal Rules, R. 2.1). There appears to be no circumstance in which leave to appeal would be required. Ms. Routkovskaia would in the normal course pursue her appeal. Mr. Gibson could respond, in part, that the court has no jurisdiction to hear an appeal from an interim order. [23] Mr. Gibson's application for directions is dismissed. [24] The second application concerns the oral reasons for judgment of Justice Ball. [25] Ms. Routkovskaia seeks the following relief: a. An order authorizing the British Columbia Supreme Court to release audio recording of the hearing to the parties on record, Olga Routkovskaia and Michael Gibson, upon their request. b. An order authorizing the British Columbia Supreme Court to release the transcript of the reasons for judgment delivered orally on June 19, 2019, exactly as received from the transcription company before any changes were made by Justice Ball or anyone else to the parties on record, Olga Routkovskaia and Michael Gibson, upon their request. c. An

order authorizing J.C. WordAssist Ltd. to release audio recording they have in their possession to the parties on record, Olga Routkovskaia and Michael Gibson, upon their request. (This is being requested as contingency backup to the above in the event of unexpected issues.) d. An order authorizing J.C. WordAssist Ltd. to release the transcript of the reasons for judgment delivered on June 19, 2019, exactly as provided to the British Columbia Supreme Court before any changes were made by Justice Ball or otherwise to the parties on record, Olga Routkovskaia and Michael Gibson, upon their request. (This is being requested as contingency backup to the above in the event of unexpected issues.) [26] The Supreme Court has published a "Court Record Access Policy" (the "Policy") that details the processes by which a party can access the recording and transcript of a proceeding. According to section 2.3.15 of the Policy, anyone who is entitled to access the court record in a family law proceeding may have access to the transcript of that proceeding. That person will also have a right to copy the transcript. If a transcript is not yet prepared, that person will have to pay the appropriate fee to request the transcript. According to Rule 22‑8(1)(a) of the Supreme Court Family Rules, a party to the proceeding is a person entitled to access the court record. Ms. Routkovskaia is thus

entitled to access the transcript. In order to obtain the transcript, Ms. Routkovskaia may do so by visiting the Supreme Court Family Registry. [27] The Policy further provides that a person who was present at a proceeding (or entitled to be present) is entitled to listen to that proceeding (s. 3.2.1). Ms. Routkovskaia has indicated she has already listened to the proceeding, which one does by visiting the Supreme Court Family Registry. [28] Ms. Routkovskaia is entitled to obtain a copy of the audio recording of the proceeding, pursuant to section 3.3.3.2 of the Policy: 3.3.3.2 Oral Reasons for Judgment A person wishing to obtain a copy of the audio recording of oral reasons for judgment in respect of a family proceeding must make an application in accordance with Supreme Court Family Rules and PART 4 - PROCEDURE FOR ACCESS APPLICATIONS of this policy. [29] According to section 3.3.3.2 of the Policy, she can apply for an audio recording of the oral reasons for judgment by making a without notice application in accordance with Rule 10‑8. [30] At least at first instance, Ms. Routkovskaia must follow the procedure set out in the court below for access to the recordings below. I would therefore dismiss Ms. Routkovskaia's applications. [31] The third application before me is Mr. Gibson's application for an extension of time. [32] Mr. Gibson applies for an extension of time to file and serve his respondent's factum. Rule 21 of the Court of Appeal Rules requires a respondent to file a factum within 30 days of being served with the appellant's factum. The appellant's factum was filed on October 15, 2019. [33] The criteria for extending the time to begin an appeal are: 1. Was there a bona fide intention to appeal?

2. When was the respondent informed of the intention?

3. Would the respondent be unduly prejudiced by an extension?

4. Is there merit in the appeal?

5. Is the extension in the interest of justice? Davies v. Canadian Imperial Bank of Commerce (1987), 15 B.C.L.R. (2d) 256 at 259-260 (C.A.). [34] Though these factors were articulated with respect to beginning an appeal, they will apply (with appropriate modifications) in applications to extend the time for taking any step necessary in the prosecution of an appeal (Vancouver City Savings Credit Union v. R.D. Backhoe Services Inc., 2011 BCCA 159 at para. 8). [35] This chambers hearing was initially scheduled for November 15, 2019, and was adjourned until January 9, 2020. At the initial hearing, Mr. Gibson sought an extension of time on the grounds that the reasons for judgment from the court below were not yet available. They have since been made available and filed with this Court. Though neither Mr. Gibson nor Ms. Routkovskaia argued the five Davies factors, it is in the interests of justice that Mr. Gibson have an extension of time to file his respondent's factum given the procedural hurdles encountered. Mr. Gibson will have until February 7 to file and serve the respondent's factum. Disposition [36] Mr. Gibson's application for directions is dismissed. [37] Mr. Gibson's application for an extension of time is granted. The deadline to file and serve his factum is extended to February 18, 2020. [38] Ms. Routkovskaia's applications as set out above at paragraph 25 are dismissed. "The Honourable Madam Justice Garson"