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)

4. What does the term ordinary residence mean in the context of:

(a) the common law

"ordinary residence" is not a phrase capable of precise definition[90]. At its simplest level, ordinary residence connotes something more than mere temporary presence in a place. It refers to the place in which a person's lifestyle is centered and to which the person regularly returns if his or her presence is not continuous[91].

The courts started to resort to "ordinary residence" in custody cases following the Privy Council decision in McKee v. McKee [92]to structure their discretion whether to assume jurisdiction in cases where a child was unilaterally removed by one parent to the place where that parent now sought custody. The combination of the Privy Council's decisions that a local court was not bound by a foreign custody order and could assume jurisdiction based on simple presence within the jurisdiction raised the spectre of widespread child napping as well as the embarrassing prospect of two courts assuming jurisdiction and making contradictory orders on the same facts. In response, a practice developed without any legislative basis whereby Canadian courts would decline jurisdiction under provincial custody legislation if the child was not ordinarily resident in the province [93]. When custody legislation was reformed to include jurisdiction requirements some courts adopted "ordinary residence" as the starting point. While some other courts decided jurisdiction based on real and substantial connection, few courts were content to simply assume jurisdiction based on presence, regardless of how the child's presence in the jurisdiction was established.

Most common law courts understand ordinary residence to mean the place where a person resides in the ordinary course of his or her day to day life. If the inquiry is directed towards a person's real home as many courts have suggested [94] a person usually will have only one place of ordinary residence[95] notwithstanding the family courts' early reliance on cases decided in an income tax context where the courts held that an individual can have more than one residence[96].

While an adult's ordinary residence depends on physical presence in a place for an extended and regular basis as well as an intention to live there on a more or less regular basis [97], a minor child's ordinary residence is the place where he or she last lived with his or her parents in a family setting and the child's ordinary residence changes with the parents' ordinary residence. If the parents separate, in principle, the child's ordinary residence should remain that of the parent exercising custody[98].However, as indicated, courts will not allow one parent to unilaterally change a child's ordinary residence [99].

In Re P.[100],[1968] Ch. 568 at 585-86 (CA), Lord Denning MR stated:

"The Crown protects every child who has his home here and will protect him in respect of his home. It will not permit anyone to kidnap the child and spirit it out of the realm. Not even its father or mother can be allowed to do so without consent of the other. The kidnapper cannot escape the jurisdiction of the court by such a stratagem. If, as in this case, it is the father who flies away with the child, the mother is not bound to follow him to a foreign clime. She can bring her proceedings against him in England." As a result courts uniformly accepted that one parent could not unilaterally change a child's ordinary residence from what it had been while the family was cohabiting as a unit after separation without a court order approving the move, or the consent/acquiescence of the other parent.

Unlike actual residence, ordinary residence does not require continued physical presence in a place during the currency of the period of ordinary residency. That a person has a fixed place of residence in a jurisdiction is an important consideration but not a requirement of law to establish and maintain ordinary residence in a place [101]. A person does not lose his or her ordinary residence in a place by leaving for a temporary purpose [102]. However, a person will lose his or her ordinary residence in a place if he or she travels to another place to live and work indefinitely even if he or she intends ultimately to return to the prior home [103].

(b) any provincial/territorial legislation that uses the term

Parliament incorporated ordinary residence as one of the main jurisdictional contacts in the Divorce Act 1968 and continued it in the 1985 version. Interestingly, the 1968 French version used the words "ordinairement reside" which were changed to "réside habituellement" in the 1985 version. "ordinary residence" is also used in a variety of provincial and other federal statutes, including the Criminal Code, and the Interjurisdictional Support Orders Acts. Increasingly, custody statutes incorporate "habitual residence" in preference to "ordinary residence" which probably reflects the influence of the Hague Conferences on the various issues. While there are contextual differences that may result in slight differences particularly in the provisions of various provincial rules of civil procedure, which are limited to intra provincial jurisdiction, on balance most courts have applied a similar analysis to that described above in interpreting the concept in a family law context.

The Income Tax Act cases seem to accept that a person may have more than one ordinary residence.[104]. A similar interpretation is possible under the federal Garnishment, Attachment and Pension Diversion Act given the remedial nature of the legislation and the objective of facilitating enforcement of family law orders

Recently, some courts appear to have gravitated to a view whereby it is assumed that a person may only have one ordinary residence at a time in the ordinary course [105] but most have stopped short of holding that a person may not have more than one place of ordinary residence as a matter of law. However, there is case law to the effect that an intention to settle in a place will not effect a change of ordinary residence without a physical presence in that place [106]. While the reason for a person's presence in a place is a relevant consideration, a person can be ordinarily resident in a place even if his or her presence in the jurisdiction is illegal [107].