CHAPTER 22 Divorce

• Date: 07 April 2025

484

CHA PTER 22

DIVORCE

A. JURISDICTION

1) Taking Jurisdiction

Section 91(26) of the Constitution Act, 1867 gives the Parliament of Can-

ada exclusive legislative jurisdiction over divorce.1 The federal Divorce

Act establishes the jurisdiction of provincial superior courts to entertain

petitions for divorce.2 It states in section 3(1): “A court in a province has

jurisdiction to hear and determine a divorce proceeding if either spouse

has been habitually resident in the province for at least one year immedi-

ately preceding the commencement of the proceeding.”

The concept of residence was discussed in Chapter 2.3 The leading

authority in the divorce context is MacPherson v MacPherson,4 in which

the Ontario Court of Appeal interpreted the corresponding provision in

the previous Divorce Act.5 The question was whether the petitioning wife

had been ordinarily resident in Ontario for at least one year immediately

before her petition in July 1974. The wife was born in Ontario and had

1 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5.

2 RSC 1985 (2nd Supp), c 3.

3 As discussed in that chapter, s 3(1) previously used “ordinarily resident” rather

than “habitually resident.” As a result, the discussion in this chapter of earlier

cases sometimes refers to the former term. The wording change does not change

the analysis. See Hiebert v Fingerote, 2021 ABQB 807 at para 9.

4 (1976), 13 OR (2d) 233 (CA) [MacPherson]. See also Quigley v Willmore (2008),

264 NSR (2d) 293 (CA); Armoyan v Armoyan, 2013 NSCA 99 at para 214

[Armoyan].

5 RSC 1970, c D-8, s 5(1).

Divorce 485

resided there until her marriage in Nova Scotia at the end of 1968. The

parties moved to Ontario in the spring of 1969 where they lived until

September 1973. At that time, they and their three children moved back

to Nova Scotia where they established a home. Apart from a four-week

visit by the wife to Ontario in November and December 1973, the family

lived in Nova Scotia until April 1974 when the wife returned to Ontario.

The husband continued to live in Nova Scotia. The wife asserted that

she had not intended to establish a permanent residence in Nova Scotia

when she moved there in September 1973.

The court held that the wife had not met the jurisdictional require-

ment that she be ordinarily resident in Ontario for a period of at least one

year immediately preceding the presentation of the petition. In def‌in-

ing ordinary residence for the purpose of divorce jurisdiction, Evans JA

relied on Thomson v Minister of National Revenue in which Rand J had

described ordinary residence as “residence in the course of the custom-

ary mode of life of the person concerned” and had said that it was to

be “contrasted with special or occasional or casual residence.”6 Justice

Evans drew support from several earlier decisions, including Hardy v

Hardy.7 There, the court held that a member of the Armed Forces who

was born and had lived in Ontario continuously until he joined the

army and who had returned on leave to his parents’ Ontario home had

remained ordinarily resident in Ontario despite his being moved by the

army from place to place outside Ontario. Justice Evans approved of the

test of ordinary residence applied by Houlden J in Hardy: “Where did this

petitioner regularly, normally or customarily live in the year preceding

the f‌iling of the petition? . . . ‘Where was his real home in that period?’”8

He stated that “the arrival of a person in a new locality with the intention

of making a home in that locality for an indef‌inite period ma[de] that

person ordinarily resident in that community.”9 Unlike domicile, how-

ever, intention was not all-important. Thus, the wife’s stated intention of

returning to live in Ontario did not detract from her ordinary residence

in Nova Scotia, which she acquired when she left Ontario to reside with

her husband in Nova Scotia. She did not re-establish an ordinary resi-

dence in Ontario until she moved back in April 1974 and that was less

than a year before her petition.10

6 [1946] SCR 209 at 224.

7 [1969] 2 OR 875 (HCJ) [Hardy]. See also Marsellus v Marsellus (1970), 13 DLR

(3d) 383 (BCSC).

8 Hardy, above note 7 at 877, cited in MacPherson, above note 4 at 237.

9 MacPherson, ibid at 239.

10 Similarly, in Naf‌ie v Badawy, 2015 ABCA 36, the majority held that the motions

judge had placed too much emphasis on Ms Naf‌ie’s stated intention (paras 57–63)