February 12, 2020 – Definition of “Ordinarily Resident”

“The Divorce Act s. 3(1) provides: “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 proceedings.”

The Divorce Act does not define “ordinarily resident”. In Thomson v. M.N.R., (1946) CanLII 1 (S.C.C.) the Supreme Court of Canada defined “ordinarily resident” for purposes of an income tax matter as follows: “one is ordinarily resident in the place where in the settled routine of his life, he regularly, normally, customarily lives.”

In MacPherson v. MacPherson(1977), 1976 CanLII 854 (ON CA)13 O.R. (2d) 233 (C.A.), the Ontario Court of Appeal stated that in determining whether a party was “ordinarily resident” the court must consider “where the Petitioner regularly, normally or customarily lived in that year.”

It is clear that the Respondent did not live only in Toronto in the year immediately preceding April 17, 2018. The regular season schedule for the Raptors shows that in most months between October 2017 and April 2018, the team played home and away games about equally. The Applicant states he played 40 games in Toronto in that season. He states that he was based in Toronto and travelled for his employment. The fact that a person travels for their employment does not mean that they are not “ordinarily resident” in the place they return to when their work travel is completed.

In Knowles v. Lindstrom, 2014 ONCA 116 (CanLII)118 O.R. (3d) 763, Doherty J.A. held that Thomson establishes that a person can be “ordinarily resident” in more than one place at the same time. The parties in Knowles lived in Florida, but spent significant time in Muskoka and Toronto. Doherty J.A. agreed with the motion judge below that “the parties had set up a pattern that included residence in Ontario… on a regular basis for part of every year, for months at a stretch, for more than five years. That amounts to ‘ordinary residence.’”

In Roberts v. Bedard, 2015 ONSC 7918 (CanLII), the court considered the ordinary residence of a former professional baseball player and coach who owned property in Ontario and lived there in the off-season. He had lived and worked in various U.S. cities over the years. Mackinnon, J. stated that “Where the settled routine involves customary residence in more than one home, the court may find that the party is ordinarily resident in more than one jurisdiction. Simply owning or maintaining property in a jurisdiction does not make one ordinarily resident there. It must be shown that residence at the property was part of the regular routine. The court may also consider the intentions of the party when determining where the party is ordinarily resident. This is not determinative, but can help clarify whether a stay at a given property was meant as a sojourn or as a long-term relocation, such as to establish ordinary residence”.”

         Nogueira v. Kuczynski, 2019 ONSC 1032 (CanLII) at 24-26 & 29-30