Canadian divorce jurisdiction
Question: My wife sponsored me to come to become a
permanent resident in Canada. We married
in Canada in 1993 and lived in Toronto, Ontario until we separated in July
1997. The last I heard she is living in
France. I have moved around and have
been here in New Zealand for about four months.
My citizenship is British and I am only living here as visitor. Would you tell me if I can get a divorce in
Canada because that is where we were married and lived as husband and wife.
Signed "Ivan," Australia, April
1999**
Answer: The only basis for applying for a
divorce in Canada is ordinary residence in one of the provinces. The federal Divorce Act applies:
Jurisdiction in divorce proceedings
(1)
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.
Because neither one of you is resident in any province, you do not
qualify to obtain a divorce in Canada.
It is also important to note that if you ever needed to remarry in
Canada you would have to have a divorce that was recognized in Canada. The same rule applies as to residency. Regardless of the jurisdictional basis in the
country in which you obtain your divorce, that foreign divorce is only valid in
Canada if one of the parties was ordinarily resident there for one year before
the proceeding commenced. Of course it
doesn't matter which party is resident as long as one party lives in the
jurisdiction for one year.
Ordinarily resident does not mean present every day. However, being domiciled there--what is usually meant to mean being a permanent resident of a jurisdiction--is not enough. A person can be domiciled in a jurisdiction and be absent for extended periods.
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[There have been some changes to this area of law since 1999. The term ordinarily
resident was changed to habitually
resident. A more important change followed
with the more universal acceptance of same sex marriage. Because many same sex couples travelled to
Canada to enter into marriages when their home countries wouldn’t permit them,
this left couples in limbo if they later wanted to divorce. The Canadian Parliament passed a measure allowing
non-resident couples to divorce in Canada if that remedy was not available
where they lived. See Civil
Marriage Act, SC 2005, c 33
7
(1) The court of the province where the marriage was performed may, on
application, grant the spouses a divorce if
(a)
there has been a breakdown of the marriage as established by the spouses having
lived separate and apart for at least one year before the making of the
application;
(b)
neither spouse resides in Canada at the time the application is made; and
(c)
each of the spouses is residing — and for at least one year immediately before
the application is made, has resided — in a state where a divorce cannot be
granted because that state does not recognize the validity of the marriage.]
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**Last updated 2024-03-04