Renvoi: Lex Situs Conflictus

Canadian Conflict of Laws Blawg by Seva Batkin

Ordinary Residence – A Restatement

Posted by Seva on April 24, 2008

The decision of the Nova Scotia Court of Appeal in Quigley v. Willmore provides a useful restatement of the concept of ordinary residence, at least for the purpose of a provincial court assuming jurisdiction over divorce proceedings under s. 3(1) of the Divorce Act. The decision considers a number of relevant authorities and summarizes them into 6 relatively clear guidelines to be used in determining ordinary jurisdiction of a party.

The issue before the court was whether the trial judge correctly concluded that the appellant was ordinarily resident in Texas rather than Nova Scotia. Trying to identify the principles governing the concept of ordinary residence, the court cited a number of time-honoured and lesser known authorities:

  • Thomson v. Canada (M.N.R.), per Rand J., explaining it as “chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences”;
  • Thomson v. Canada (M.N.R.), per Estey J., explaining it as the place of “settled routine of … life”;
  • MacPherson v. MacPherson (1976), 13 O.R. (2d) 233 (C.A.), explaining it as “a thing which can be changed in a day … [to] the place [in] which he intends to make his home”;
  • Girardin v. Girardin (1973), 42 D.L.R. (3d) 294 (Sask. Q.B.), explaining it as the person’s “home base” and that a “persons [sic] state of mind may properly be taken into consideration” of the purpose for which is travels to another jurisdiction; and
  • Arnold v. Arnold, distinguishing ordinary residence from “unusual, casual or intermittent” presence.

On the basis of these authorities, the court summarized the following principles relating to ordinary residence:

  • the determination of ordinary residence is highly fact specific and a matter of degree;
  • ordinary residence is in contrast to casual, intermittent, special, temporary, occasional or exceptional residence;
  • residence is distinguished from a stay or visit;
  • a person’s ordinary residence is where she is settled-in and maintains her ordinary mode of living with its accessories, relationships and conveniences, or where she lives as one of the inhabitants as opposed to a visitor;
  • an ordinary residence may be limited in time from the outset or it may be indefinite or unlimited; and
  • ordinary residence is established when a person goes to a new locality with the intention of making a home there for an indefinite period.

On the facts of the case, the court affirmed the trial judge’s conclusion that the appellant was not ordinarily resident in the province.

Given that ordinary residence is a fundamentally important concept in conflict of laws, for example it establishes court’s “territorial competence” under s. 3(d) of the CJPTA, this decision should hopefully provide a little bit more certainty in this otherwise rather ambiguous area of law.


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