Divorce

• Author: Stephen G.A. Pitel/Nicholas S. Rafferty
• Profession: Faculty of Law, University of Western Ontario/Faculty of Law, University of Calgary
• Pages: 402-426

402

CHAPTER 22

DIVORCE

A. JURISDICTION TO GRA NT A DIVORCE

1) Existence of Jurisdiction

By section 91(26) of the Constitution Act, 1867, the Parliament of Canada

has exclusive legislat ive jurisdiction over divorce.1 The federal Divorce

Act establishes the jur isdiction of provincia l superior courts to enter-

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

has jurisd iction to hear and determine a divorce proceeding if either

spouse has been ordin arily resident in the province for at least one

year immediately preceding t he commencement of the proceeding.” We

have already disc ussed the concept of ordinar y residence.3 The leading

authority in the divorce context is MacPhe rson v. MacPherson,4 in which

the Ontario Court of Appeal interpreted the correspondi ng provision

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

wife had been ordina rily resident in Ontario for at least one year im-

mediately preceding the presentation of her petition in July 1974. The

wife was born in Ont ario and had resided there unt il her marri age in

1 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S .C. 1985, App. II, No. 5.

2 R.S.C. 1985 (2d Supp.), c. 3.

3 See Chapter 2.

4 (1976), 13 O.R. (2d) 233 (C.A.) [MacPherson]. See also Quigley v. Willmore

(2008), 264 N.S.R. (2d) 293 (C.A.).

5 R.S.C. 1970, c. D-8, s. 5(1).

Divorce 403

Nova Scotia at the end of 1968. The parties moved to Ontario in t he

spring of 1969 where they lived until September 1973. At that time,

they and their three chi ldren moved back to Nova Scotia where they

established a home. Apart from a four-week visit by the wife to Ontario

in November a nd December 1973, the fami ly lived in Nova Scoti a 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 perm anent residence in Nova Scotia when she moved there

in September 1973.

The court held that the wife had not complied wit h the jurisd ic-

tional requirement that she be ordinarily resident in Ontar io for a

period of at least one year immediately preceding the presentation of

the petition. In def‌ining ordi nary residence for the pur pose of divorce

jurisdiction, Evans J.A. relied upon the important ta x case of Thomson

v. Minister of National Revenue where Rand J. had described ordin ary

residence as “residence in the course of the cu stomary mode of life of

the person concerned” and had said that it was to be “contrasted w ith

specia l or occa sional or c asual 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 bor n and had

lived in Ontario conti nuously until he joined the army and who had

returned on leave to his parent s’ Ontario home had remained ordinar-

ily resident in Ontario despite his being moved by the army f rom 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 customari ly live in the year preceding t he f‌il-

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

stated that “the arr ival of a person in a new locality with the inten-

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

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

however, intention was not all-important. Thus, the wife’s stated inten-

tion of returning to live in Ont ario did not detract from her ordina ry

residence in Nova Scotia, which she acquired when she left Ontar io

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 th an a year before the presentation of her petition.

6 [1946] S.C.R. 209 at 224.

7 [1969] 2 O.R. 875 (H.C.J.) [Hardy]. See also Marsellus v. Marsellus (1970), 13

D.L.R. (3d) 383 (B.C.S.C.).

8Ibid. at 877, cited in MacPherson, above note 4 at 2 37.

9MacPherson, ibid. at 2 39.