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FactsEdit

The applicants were married in 1999 and separated in 2006. The appellant filed for divorce in Nova Scotia but the court denied having jurisdiction to process the divorce proceedings. During their marriage they lived together variously in Nova Scotia and in Texas. While the parties lived together in Texas, the appellant maintained their home in Nova Scotia. The appellant maintained that when she moved to Texas it was not her "ordinary residen[ce]" as she continued to have her law practice in Nova Scotia and it was just a "trial" to see if it would work out. The lower court found that for the purposes of s.3(1) of the Divorce Act she was "ordinarily resident" in Texas, the evidence showing she gave the school her Texas address as permanent, she moved several of her horses to Texas, and maintained only a small presence in her firm in Nova Scotia.

IssueEdit

  1. What does "ordinarily resident" mean for the purpose of s. 3(1) of the Divorce Act?

DecisionEdit

Appeal dismissed.

ReasonsEdit

The court, in a unanimous decision, denied the appeal. In analysing the meaning of the phrase "ordinarily resident" they canvas the existing case law, quoting first Justice Estey from the Supreme Court decision of Thomson v Canada (Minister of National Revenue), [1946] SCR 209:

A reference to the dictionary and judicial comments upon the meaning of these terms indicates that one is "ordinarily resident" in the place where in the settled routine of his life he regularly, normally, or customarily lives. One "sojourns" at a place where he unusually, casually or intermittently visits or stays. In the former the element of permanence; in the latter that of the temporary predominates. The difference cannot be stated in precise and definite terms, but each case must be determined after all of the relevant factors are taken into consideration, but the foregoing indicates in a general way the essential difference. It is not the length of the visit or stay that determines the question. (emphasis added)

and quoting further from Macrae v Macrae, [1949] 2 All ER 34:

Ordinary residence is a thing which can be changed in a day. A man is ordinarily resident in one place up till a particular day. He then cuts the connection he has with that place ... and makes arrangements to have his home somewhere else. Where there are indications that the place to which he moves is the place which he intends to make his home for, at any rate, an indefinite period, as from that date he is ordinarily resident at that place.

The court then identifies several main themes from this (and other) caselaw:

  • The determination of ordinary residence is highly fact specific and a matter of degree
  • Ordinary residence is in contrast to and distinguished from casual, intermittent, special, temporary, occasional or exceptional residence (such as a stay or visit)
  • A person's ordinary residence is where they are settled and maintains their ordinary mode of living, or where they live as one of the inhabitants as opposed to a visitor
  • There is no temporal requirement; residence may be limited from the outset or it may be indefinite or unlimited, and is established when a person goes to a new locality with the intention of making a home there
  • The person's state of mind may properly be taken into consideration for a limited purpose as to whether they were within the jurisdiction as a visitor, etc., but a mere intention to return to the initial location is not sufficient to overcome the residency

The court thus concluded they found no error in the decision of the trial judge that the appellant was not ordinarily resident in Nova Scotia.

RatioEdit

  • Ordinary residence is established when a person goes to a new locality with the intention of making a home there for an indefinite period; intention to return somewhere else at some undefined point does not mean that you can call that place your place of ordinary residence.
  • Arrival in a new location with the intention of making that your home makes that place your ordinary residence.

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