



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 judges 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
respondents 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 respondents application for
an extension of time is granted. With respect to the appellants 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. Gibsons 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. Routkovskaias application
for access to the court recording of the judges 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. Gibsons application for an
extension of time to file and serve his factum.

[5]

For the reasons that follow, Mr. Gibsons application for
directions and Ms. Routkovskaias application for access to the records
below are dismissed. Mr. Gibsons 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. Gibsons 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 doesnt
sound like a final order. You're free to appeal it. I dont have the slightest
hard feeling about that. I dont 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. Gibsons 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. Gibsons 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 parents 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
Childs 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. Gibsons 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 Mothers Day and with Mr. Gibson on Fathers 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
Steinbergs order is final or interim. If Judge Steinbergs 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. Gibsons 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. Routkovskaias applications.

[31]

The third application before me is Mr. Gibsons application for an extension
of time.

[32]

Mr. Gibson applies for an extension of time to file and serve his
respondents factum. Rule 21 of the
Court of Appeal Rules
requires a
respondent to file a factum within 30 days of being served with the appellants
factum. The appellants 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 259260 (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 respondents factum given the procedural
hurdles encountered. Mr. Gibson will have until February 7 to file and
serve the respondents factum.

Disposition

[36]

Mr. Gibsons application for directions is dismissed.

[37]

Mr. Gibsons application for an extension of time is granted. The
deadline to file and serve his factum is extended to February 18, 2020.

[38]

Ms. Routkovskaias applications as set out above at paragraph 25
are dismissed.

The Honourable Madam
Justice Garson


