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Ordinary Residence and Commencing Your Divorce Action

Perhaps you are working in Saskatchewan but the family home is in Alberta where your children attend school. You may be wondering if you can start your divorce in either province or which one is the right province to start an action? 

Perhaps you and your spouse are American, but you recently moved into a house you purchased in Ontario and your intention is to live there permanently. Are you allowed to start a divorce action in Ontario?

The Divorce Act is a federal statute. That means it operates across Canada, and is to be applied the same across the country. The Divorce Act stipulates that a province only has jurisdiction to hear and determine your divorce if "either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding" (section 3(1) of the Divorce Act, RSC 1985 c 3 (2nd Supp)). What does ordinarily resident mean though?

"Ordinary resident" is not defined in the Divorce Act, so the Courts have interpreted what this means. It is a highly fact-driven analysis. The Alberta Court of Appeal explained that an intention to live somewhere is not enough to establish 'ordinary residence' for the purpose of the Divorce Act (Nafie v Badawy 2015 ABCA 36, at para 58, referring to MacPherson v MacPherson (1976), 70 DLR (3d) 564 at 570); there must be more than intention.

Ordinary residence is established when the person is "settled-in and maintains her ordinary mode of living with its accessories, relationships and conveniences, or where she lives as one of the inhabitants as opposed to a visitor; an ordinary residence may be limited in time from the outset or it may be indefinite or unlimited; and ordinary residence is established when a person goes to a new locality with the intention of making a home there for an indefinite period." (Quigley v Willmore 2008 NSCA 33 para 21).

Only one spouse has to meet the ordinary residence requirements in order to start divorce proceedings in a province. If you are not sure which province, if any, in which you can commence a divorce, it might be best to consult a lawyer to guide you through the requirements under section 3(1) of the Divorce Act.

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