January 15, 2021 – “Ordinarily Resident”

“Section 3 of the Divorce Act states: “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.” (emphasis added)

At the time the applicant filed her application she had been living in Canada for 9 months.  The respondent has not lived in Canada.

In Haroon v. Haroon 2019 ONSC 77 the court found there was no jurisdiction to hear a divorce application under the Divorce Act as the applicant was not ordinarily resident in Ontario for one year prior to the application being commenced.

The court in Robar v Robar 2010 NBQB 8 declined jurisdiction under the Divorce Act where the wife had moved to NB eight (8) months before signing her petition for divorce. The court emphasized that section 3 of the Divorce Act was the “sole basis for jurisdiction for divorce.” (at para. 12).  Further, the court noted that “these statutory requirements are substantive, and failure to establish residency is fatal to the proceeding.” (at para. 14).  The court did, however, find that it had jurisdiction to grant the divorce under the Divorce Act by virtue of the counter-petition filed by the husband, who had been ordinarily resident in NB for over 12 months at the time he signed his counter-petition.

In Gazo v Gazo 2005 CarswellOnt 534 the court discussed the residency requirement under section 3 of the Divorce Act and stated: 

Sections 3 to 6 of the Divorce Act define the jurisdictional competence of a court to grant a divorce and any corollary relief by way of spousal or child support or custody of or access to the children. A divorce petition can be presented by either or both spouses to the court of the province wherein either spouse has been ordinarily resident for not less than one year immediately preceding the filing of the petition. The first issue then is whether Maria Gazo has been ordinarily resident in Ontario for not less than one year immediately preceding the filing of the divorce petition. In this case, there is no doubt that she has not been resident in Ontario for the requisite time period. …. she may have intended to maintain her residency here. However, she did not do so. As was held in MacPherson v. MacPherson (1976), 1976 CanLII 854 (ON CA), 28 R.F.L. 106 (Ont. C.A.), intention alone cannot determine ordinary residence. Mr. and Mrs. Gazo left Ontario in 2001 and moved to the Slovak Republic. They made the Slovak Republic their home until Maria Gazo returned to Ontario in March 2003. When she commenced her divorce proceeding on December 4, 2003, she had been resident in Ontario since March 31, 2003. Maria Gazo was not ordinarily resident in Ontario for one year immediately preceding the filing of the petition. This Court had no jurisdiction to entertain the petition for divorce.

The court in Jung v Jung 2016 ONSC 3020 addressed the residency requirement of section 3 of the Divorce Act and stated: 

In general, courts have strictly interpreted s. 3(1). The prevailing view is that “there is no naturally existing right to a divorce, but rather a right, based in statute, to present a petition for a divorce”: Garchinski v. Garchinski, 2002 SKQB 323 (Sask. Q.B.), at para. 25. The leading case for this proposition is Winmill v. Winmill (1974), 1974 CanLII 1228 (FCA), 47 D.L.R. (3d) 597 (Fed. C.A.). In Winmill, the applicant argued that the Federal Court should exercise jurisdiction to hear her divorce under s. 25 of the Federal Court Act, which provision allows the Federal Court to hear claims for relief where no other courts in Canada have jurisdiction. The applicant did not meet the residency requirement in any individual Canadian province. The Federal Court of Appeal rejected her argument, holding that the Divorce Act does not grant a right to divorce, but a limited right to apply for divorce subject to the conditions of the Act.

As neither the applicant nor the respondent were ordinarily resident in Canada for one year prior immediately preceding the commencement of an application under the Divorce Act, the court has no jurisdiction to consider the request.”

Nawab v. Abid, 2019 ONSC 7590 (CanLII) at 23-29