Divorce

AuthorStephen G.A. Pitel; Nicholas S. Rafferty
Pages425-450
CHAPTER
2
2
DIVORCE
A.
JURISDICTION
TO
GRANT
A
DIVORCE
1)
Existence
of
Jurisdiction
By
section
91(26)
of
the
Constitution
Act,
1867,
the
Parliament
of
Can
ada
has
exclusive
legislative
jurisdiction
over
divorce.
1
The
federal
Di
vorce
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
proceed
ing
if
either
spouse
has
been
ordinarily
resident
in
the
province
for
at
least
one
year
immediately
preceding
the
commencement
of
the
pro
ceeding.
The
concept
of
ordinary
residence
was
discussed
earlier
in
this
book.
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
preceding
the
presentation
of
her
pe
tition
in
July
1974.
The
wife
was
born
in
Ontario
and
had
resided
there
1
(UK),
30
&
31
Viet,
c
3,
reprinted
in
RSC
1985,
App
II,
No
5.
2
RSC
1985
(2nd
Supp),
c
3.
3
See
Chapter
2.
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).
425
426
CONFLICT
OF
LAWS
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
hus
band
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
complied
with
the
jurisdictional
requirement
that
she
be
ordinarily
resident
in
Ontario
for
a
period
of
at
least
one
year
immediately
preceding
the
presentation
of
the
petition.
In
defining
ordinary
residence
for
the
purpose
of
divorce
jurisdiction,
Evans
JA
relied
upon
the
important
tax
case
of
Thomson
v
Minister
of
National
Revenue
in
which
Rand
J
had
described
ordinary
residence
as
residence
in
the
course
of
the
customary
mode
of
life
of
the
person
concerned
and
had
said
that
it
was
to
be
contrasted
with
special
or
occasional
or
cas
ual
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
On
tario
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
Un
like
domicile,
however,
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
On
tario
to
reside
with
her
husband
in
Nova
Scotia.
She
did
not
re-establish
an
ordinary
residence
in
Ontario
until
she
moved
back
in
April
1974
and
that
was
less
than
a
year
before
the
presentation
of
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
Ñafie
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)

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT