How is the term “ordinarily resident” interpreted with respect to the Divorce Act? *TVA | THE LEGAL OUTSOURCING NETWORK

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Sample Memo

ABRIDGMENT CLASSIFICATION: Family law—Divorce—Jurisdiction of courts—Determining ordinary residence

AUTHOR: TVA | The Legal Outsourcing Network

JURISDICTION: British Columbia | DATE OF RESEARCH: 2011 | UPDATED DATE: July 1, 2014

OTHER KEY WORDS: family; divorce; application for divorce; immigrant; ordinary residence

LEGAL ISSUE: How is the term “ordinarily resident” interpreted with respect to the Divorce Act?

FACT SCENARIO: Husband and wife were married in 2004. They lived in New York prior to moving to British Columbia. Husband was a dual citizen but wife is an American citizen and does not have landed immigrant status. Prior to their separation, the parties lived in Canada for approximately 50% of the year. Wife seeks your advice as to whether she can bring an application for divorce in British Columbia.

CONCLUSION:Although the Divorce Act, does not interpret the meaning of the term “ordinarily resident”, courts have the authority to ascertain it. Generally, courts interpret this term to be different from actual residence for some special purpose. What makes a person “ordinarily resident” in a locality is that person’s intention of making a home in the locality for an indefinite period. Intention, however, is not the only test. Person’s settled routine to his life and where he regularly, normally or customarily lives will also be considered. It is not the length of the visit or stay that determines the question but the nature of the residence. The determination of ordinary residence is highly fact specific and a matter of degree. Each case must be determined after all the relevant factors are taken into consideration but the element of permanence must be contrasted with casual or intermittent visits to determine ordinary residence.

ANALYSIS:Subsection 3(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), provides:

3. (1) A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.

Although the Divorce Act, does not interpret the meaning of the term “ordinarily resident”, courts have the authority to ascertain it, as explained by the BC Supreme Court in MacLean v. MacLean, 1990 CarswellBC 476, 28 R.F.L. (3d) 103 (B.C. S.C.), where the Court also explained that the term is different from actual residence. What makes a person “ordinarily resident” in a locality is that person’s intention of making a home in the locality for an indefinite period. In this case, following the parties’ marriage, on September 29, 1981, the parties lived in Toronto, Ontario, where the respondent was employed, until June 1982. They then moved to Vancouver where they continued to reside until, in November 1985, the respondent voluntarily left his job in Vancouver and they moved to Seattle, Washington, U.S.A. where he had accepted a new position. Both parties agree that the move to Seattle was made in order to advance the respondent’s career. Soon after his arrival in Seattle the respondent applied to the United

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States Immigration and Naturalization Service for status as a permanent resident. In support of that application, the petitioner signed a document entitled “Petition to Classify Status of Alien Relative” in which she acknowledged that the respondent would be applying for “adjustment of status to that of a lawful permanent resident” of the United States. The respondent was subsequently granted resident alien status. From the time of their arrival in Seattle until they separated, in September 1987, the parties lived together in a rented a home on Mercer Island, near Seattle. In June 1987, the respondent received an offer of employment from a large brokerage firm in London, England. He accepted that offer and, on July 31, 1987, resigned his job in Seattle. The petitioner acknowledged they had decided to move to England. During the month of August 1987, the parties spent three weeks on Hornby Island in British Columbia but in the month of September 1987 they separated. Following the separation, the respondent took up residence with his parents in Vancouver, B.C., where he was living when the petition was filed. The respondent took the position that, on that evidence, he was not “ordinarily resident” in British Columbia during the one year immediately preceding the commencement of the proceeding and the Court allowed respondent’s application for a declaration that it was without jurisdiction to hear the proceedings, but only with respect to the petitioner’s claim for divorce under the Divorce Act. Discussing the issue of ordinary residency, the Court explained [paras. 30–36 and41-42]:

The phrase “ordinarily resident” is not defined in the Divorce Act, 1985, but it has been held that the meaning of those words may be ascertained from judicial decisions interpreting s. 5(1)(b) of the Divorce Act, 1970, in which the same words appeared: (see Maher v. Maher (1987), 10 R.F.L. (3d) 276 (N.B.Q.B.) at p.279).

The same conclusion was reached by the author of Payne on Divorce, 2nd Ed. 1988. At pp. 16-17 he discusses the judicial interpretation of the phrase “ordinarily resident” and says:

The meaning of the words ‘ordinarily resident’ in subsection 3(1) of the Divorce Act, 1985, and in subsection 5(1) and subsection 22(1) of the Act, is ascertainable from judicial decisions interpreting paragraph 5(1)(b) of the Divorce Act, R.S.C. 1970, c. D-8, wherein the same wordsappear.

A spouse may be ordinarily resident in a province, notwithstanding that he or she leaves that province and actually resides elsewhere for some special purpose. The test to be applied is: ‘Where is the spouse’s real home?’ Accordingly, a spouse may retain an ordinary residence in a Canadian province, even though that spouse spends a number of years in another jurisdiction to which he or she has been posted by an employer.

Among the several decisions cited in support of that proposition is that of Marsellus v. Marsellus (1970), 75 W.W.R. 746, 2 R.F.L. 53, 13 D.L.R. (3d) 383, a decision of this court. There it was held that the petitioner, who was a member of the Canadian Armed Forces, had been ordinarily resident in British Columbia during the one year preceding the presentation of the petition on January 5, 1970, notwithstanding the fact that he was posted to Germany on July 31, 1966 and did not return to the province until December 9, 1969. Aikins J. held that a person who is ordinarily resident in a province may leave it and actually reside elsewhere “for special purposes” and yet continue to be ordinarily resident in thatprovince.

In MacPherson v. MacPherson (1977), 28 R.F.L. 106, the Ontario Court of Appeal considered a number of the cases relating to the determination of ordinary residency, including Marsellus v. Marsellus, and heldthat:

... the arrival of a person in a new locality with the intention of making a home in that locality for an indefinite period makes that person ordinarily resident in that community.

In MacPherson, the husband and wife married and lived in Nova Scotia until 1969, when they moved to Ontario. They remained in Ontario until September 1973, when they moved, with their children, back to Nova Scotia, where they established a home. They remained there until April 1974, at which time the wife moved back to Ontario and the husband remained in Nova Scotia. She stated that she had never intended to establish a permanent residence in Nova Scotia. Her husband said that he did. One of the issues was whether the wife had been ordinarily resident in Ontario for the required period. At p. 112, Evans J.A.said:

Mrs. MacPherson left Ontario to reside with her husband and family with the intention of residing in Nova Scotia for an indefinite period of time. Her stated intention of returning to live in Ontario does not detract from the fact that she was ordinarily resident in Nova Scotia or that period which continued until she moved and established her residence in Ontario.

In the case at bar (assuming that the respondent was ordinarily resident in this province while living with his parents between September 1977 and February 1988) in order that this court have jurisdiction it must be established that between February 1987 and September 1987, the respondent was ordinarily resident in British Columbia, notwithstanding that during a substantial part of that period he was living and working in Seattle, Washington.

In my view, that finding depends on whether or not, when he and the petitioner moved to Seattle, they did so with the intention of making that city their home for an indefinite period.

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...

On the authority of MacPherson and MacPherson and the subsequent cases such as Mahar v. Mahar (supra) that have followed that decision, in order to refute the claim of jurisdiction the respondent need only establish that when he and the petitioner moved to Seattle, Washington, they did so with the intention of making that city their home for an indefinite period.

I am satisfied that was the case. The decision to move to Seattle was a joint decision. It was made, in part at least, for the purpose of advancing the respondent’s career. It was a voluntary move and there is no suggestion that they fixed any time limit for their stay in Seattle.

This interpretation was reiterated in Sangi v. Sangi, 2011 CarswellBC 1019, 2011 BCSC 523, [2011] B.C.W.L.D. 5570, [2011] B.C.W.L.D. 5541, [2011] W.D.F.L. 4028, [2011] W.D.F.L. 3991 (B.C. S.C.), where the parties immigrated to Canada in 2002 and separated in 2003. The husband argued that he was ordinarily resident in Iran for at least one year before commencement of the divorce proceedings. The Court agreed and explained [paras.193–195]:

A helpful discussion of the term as used in s. 3 is provided in Quigley v. Willmore, 2008 NSCA 33 (N.S. C.A.). After reviewing the relevant case law, the Nova Scotia Court of Appeal wrote at para. 21:

[21] From this review of the law, several themes emerge:

• the determination of ordinary residence is highly fact specific and a matter of degree;

• ordinary residence is in contrast to casual, intermittent, special, temporary, occasional or exceptionalresidence; residence is distinguished from a stay or visit;

• a person’s ordinary residence is where she 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.

I accept Mr. Sangi’s evidence that during the period from late 2002 to the end of 2003, Mr. Sangi maintained a residence in Iran and spent far more time there than in Canada. Mr. Sangi’s residence in Iran in the relevant period was for work. He was occasionally in Canada to visit,

primarily with his children, but, in the period before the parties’ separation, also with Ms. Sangi.

Mr. Sangi was ordinarily resident in Iran in the relevant year, and he visited his family in Vancouver.

Intention, however, is not the only test. Person’s settled routine to his life and where he regularly, normally or customarily lives will also be considered. It is not the length of the visit or stay that determines the question but the nature of the residence. Each case must be determined after all the relevant factors are taken into consideration but the element of permanence must be contrasted with casual or intermittent visits to determine ordinary residence, as explained by the BC Supreme Court in Jadavji v. Jadavji, 2001 CarswellBC 1619, 2001 BCSC 1027 (B.C. S.C.) [paras.15–21]:

Nothing turns on whether Mrs. Jadavji acknowledged an intended stay of five years or a minimum of five years. I find that, even accepting Mr. Jadavji’s description of the intention of the parties, it cannot be said they were ordinarily resident in British Columbia after they moved to Quebec. To reach that conclusion is to confuse permanent residence with ordinary residence. The court need not decide on the domicile of the parties when applying s. 3(1) of the Act. That conclusion is consistent with the authorities.

In Arnold v. Arnold (1998), 164 Sask. R. 252 (Q.B.) at 256, the court applied Thomson v. Minister of National Revenue, [1946] S.C.R. 209. At page 231-232 of that judgment, Estey J. held:

A reference to the dictionary and judicial comments upon the meaning of these terms indicates that one is “ordinarily resident” in the place where in the settled routine of his life he regularly, normally or customarily lives. One “sojourns” at a place where he unusually, casually or intermittently visits or stays. In the former the element of permanence; in the latter that of the temporary predominates.

The test is regular, normal or customary routine, not permanent residence. Even on Mr. Jadavji’s description of the arrangement, his establishment of a residence in Quebec was not intended to be unusual, casual or intermittent.

In Cable v. Cable (1981), 130 D.L.R. (3d) 381 (Sask. Q.B.) the court held that where the petitioner had moved voluntarily to Manitoba but testified that he did not intend to remain there permanently, he did not maintain his ordinary residence in Saskatchewan. The court distinguished authorities such as Marsellus v. Marsellus (1970), 13 D.L.R. (3d) 383 which involved service personnel who were obliged by their employment to move from one jurisdiction to another.

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In Zoldester v. Zoldester (1973), 13 R.F.L. 398 (B.C.S.C.) the petitioner lived in India with the respondent. The court held that, in the circumstances, if the petitioner had been asked during her stay in India where she was ordinarily resident, she would have given British Columbia as the answer. That test seems appropriate. I am satisfied that if Mr. Jadavji had been asked where he was ordinarily resident at the time he resided with his wife in Quebec, he would have said Quebec. That conclusion is consistent with his comments in one letter written to his bank. He stated that he would relocate to Quebec and work from his home and Montreal offices.

I agree with counsel for Mrs. Jadavji. Intention is not the only test. The court must look to determine where the real home of the parties is at the relevant time. That was the finding of the Ontario Court of Appeal in MacPherson, supra, when it held that a stated intention of returning to live in Ontario did not detract from the fact that Mrs. MacPherson was ordinarily resident in Nova Scotia until she did return and establish her residence in Ontario.

I am satisfied that Mr. Jadavji was not a mere visitor or there for a temporary purpose when he resided in Quebec. Even though the period was short, he was during his period of residence normally or customarily living in that province. His real home was there.

See also: S. (R.N.) v. S. (K.), 2012 CarswellBC 3850, 2012 BCSC 1874, 223 A.C.W.S. (3d) 357 (B.C. S.C.); Blazek v. Blazek, 2009 CarswellBC 3361, [2009] B.C.J. No. 2467 (B.C. S.C.); Murphy v. Wulkowicz, 2003 NSSC 181, 217 N.S.R. (2d) 156, 683 A.P.R. 156 (N.S. S.C.), aff’d 2005 CarswellNS 499, [2005] N.S.J. No. 474 (N.S. C.A.); Cadot v. Cadot, 1981 CarswellNS 333, [1981] N.S.J. No. 522 (N.S. T.D.); Thomson v. Minister of National Revenue, [1946] S.C.R. 209(S.C.C.).

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