The Meaning of "Ordinary Residence" and "Habitual Residence" in the Common Law Provinces in a Family Law Context

Residence, Habitual Residence, and Ordinary Residence in the Canadian Common Law Provinces (continued)

6. Sections 3, 4, and 5 of the Divorce Act use the concept "ordinary residence" in the English language version and "réside habituellement" in the French. How has the term "ordinary residence" been interpreted under the English version and does this differ in any significant way from the interpretation of "réside habituellement" in the French?

The interpretation of "ordinary residence" in the Divorce Act reflects the way the term has been interpreted at common law and in cases under provincial legislation. The courts have made a conscious effort to maintain a consistent interpretation of the phrase across the law. While some contextual differences arise in taxation, election, and criminal legislation, the interpretation in family law cases has been remarkably similar, especially with respect to minor children. Many if not most of the cases referred to in discussion of the meaning of "ordinary residence" in the previous sections arise under the Divorce Act or rely on early Divorce Act cases. This is not surprising since the Divorce Act was one of the first statutes to make wide scale use of the phrase in a family law context.

The concept of "ordinary residence"/ "ordinarily resident" in a divorce context may be summarized:

  1. A spouse is ordinarily resident in a province if his or her life is centered in that province. Whether this is the case is a question of fact, not law [109].
  2. A spouse may be ordinarily resident in a province even if he or she leaves the province and lives elsewhere for a temporary purpose [110].
  3. However, a person is not ordinarily resident in a province if he or she is away indefinitely, even if he or she has an intention to return at some time while away[111].
  4. Conversely, the arrival of a person in a new locale with the intention of making a home in that place for an indefinite period of time makes the person ordinarily resident in the place even if the person harboured an intention to return to the first place in the future[112].
  5. A spouse may be ordinarily resident in a province within the meaning of ss. 3, 4, & 5 of the Divorce Act even if his or her presence in the province is illegal [113].

In Molson v. Molson[114], lFraser J. held that a wife had severed her residential ties with Quebec when she left with the intention of establishing a home in Alberta and established an ordinary residence in Alberta from the day she arrived. While most courts accept that a person can sever his or her ordinary residence with a place by leaving with the intention of remaining away indefinitely, they point out that a person usually cannot acquire an ordinary residence in a day but needs some more extended stay in the place to turn their "residence" in the new place into "ordinary" residence. Fraser J. distinguished between the meaning of "ordinary residence" to decide jurisdiction to grant a divorce from "ordinary residence" for other purposes where the objectives of the exercise may be different. While his comments make sense and reflect a contextual and purposive approach to statutory interpretation, the reality seems to be that most courts have adopted the same basic definition of ordinary residence/ordinarily resident under the Divorce Act as at common law and under other statutes unless it was clear from the other legislation that the words were being used in a special sense.

In a related vein, judges in many of the early cases decided under the Divorce Act relied on the definition of the concept used in cases under the Income Tax Act. In Hinter v. Hinter[115], Epstein J. observed that numerous cases have dealt with the interpretation of the phrase "ordinarily resident", one of the earliest being Thomson v. Minister of National Revenue[116] dealing with the meaning of the phrase in the Income War Tax Act that adopted a more restrictive meaning than for "residence" and involved both physical presence in a place for an extended time and an intention to reside there in the sense that the person's customary mode of life was centered in that place as contrasted with special or occasional or casual residence. This definition was adopted under the Divorce Act in cases like Hardy v. Hardy [117], MacPherson v. MacPherson[118], Wrixon v. Wrixon[119] and MacLean v. MacLean[120].

In Lietz v. Lietz[121], Riordan J. held that the concept of ordinary residence focused on the place where a person's life was centred. Although there is no inherent exclusivity associated with "ordinary residence" in most cases a person's life will be centered in one place. In the circumstances, Riordon J. was not satisfied that either spouse had been ordinarily resident in New Brunswick for one year immediately before the commencement of divorce proceedings to establish jurisdiction under s. 3 of the Divorce Act.

In Alexiou v. Alexiou[122], the parties were married in Greece and lived there most of their lives. The parties' children were born in Greece. The parties and children maintained employment and personal ties to Greece during the time the husband worked in Alberta on a temporary basis. Nash J. held that the parties continued to be ordinarily resident in Greece and had not established ordinary residence in Alberta so that the Albert courts had no jurisdiction to entertain divorce proceedings. Nash J's comments could be reproduced in any discussion of the parties' habitual residence.

From my basic research, the courts appear to adopt the same definition when using the French language version and on the rare occasions it is necessary to refer to case law, the judges use the same basic cases referred to above. In Droit de la famille — 360[123], Tourigny J. appeared to determine jurisdiction under s. 3 of the Divorce Act using the same definition for "réside habituellement" as courts in the common law provinces had used for "ordinary residence".