The Meaning of "Ordinary Residence" and "Habitual Residence" in the Common Law Provinces in a Family Law Context

Residence, Habitual Residence, and Ordinary Residence in the Canadian Common Law Provinces (continued)

5. Are the terms "ordinary residence" and "reside habituellement" used interchangeably in English and French versions of provincial legislation that is drafted in both official languages and if so have the interpretations differed?

I have checked for legislation in Ontario, Manitoba, and New Brunswick for statutes in a family context using the phrase "ordinary residence" or "ordinarily resident" and have been unable to find any cases that adopt a different interpretation than that discussed above, with the possible exception of one Manitoba case [108].

In Manitoba, the English language version of The Inter-juridictional Support Orders Act, SM 2001 c. 33 ss. 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 19, 25, 26, 27, 28, 29, 30, 31, 32 refer to the place where a party is "ordinarily resident". The French language version refers to "reside habituellement". I have not found any cases that applied a different test under the Act than previously indicated although I suspect there should be in light of The Domicile and Habitual Residence Act. definition of "habitual residence". However, while the reasons are somewhat difficult to follow, it appears that Clearwater J. equated ordinary residence with habitual residence under The Domicile and Habitual Residence Act lin deciding custody jurisdiction under The Family Maintenance Act. Unfortunately, the comments were made in passing with no explanation or analysis.

In New Brunswick, the Family Services Act, 1980 c. F-2.2 s. 51, and the Interjusisdictional Support Orders Act SNB 2002 c. I-12.05 ss. 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 19, 23, 24, 25, 26, 27, 28, 29 refer to "ordinarily resident" in the English language versions. The French language version of the Family Services Act uses "reside ordinairement" while the French language version of the Interjurisdictional Support Orders Act uses "résident habituellement". This is probably no more than a reflection of the history of the legislation. The ISO, which is interjurisdictional and "convention like" in scope, uses the more inter-jurisdictional concept of habitual residence in the French version while the former Act being purely domestic merely translates the English language concept of ordinary residence directly into French.

In Ontario, the Change of Name Act, RSO 1990 c. C7 s. 4, 5 and the Marriage Act, RSO 1990 c. M.3 (as amended) s. 16 use the words "ordinarily resident" in the English language versions and "reside ordinairement" in the French language versions. Again, since both are purely domestic legislation, the use of a French translation for the traditional common law concept of "ordinary residence" is understandable. However, in implementing the Interjurisdictional Support Orders Act, which is more "international" and convention like, the Legislature used "ordinarily resident" and "réside habituellement".


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