Jurisdiction

Under section 3 of the Divorce Act (Canada), the superior court in any province has the jurisdiction to deal with a divorce proceeding provided that at least one of the spouses is residing in that province at the time the divorce is filed and has been ordinarily residing in that province for the 12 months immediately prior. The best way to understand this is by using some examples.

Example 1: Bob and Mary both live in the US but were married in Canada

It doesn’t matter where they were married. It only matters where they reside. Since neither now resides in Canada, neither can get divorced here. No exceptions, even if your marriage is not recognized where you live, such as some same-gender marriages, you cannot get divorced in Canada if neither of you lives here.

Example 2: Fred and Pat lived together in Ontario until 6 months ago when they separated. Pat then moved to Alberta while Fred stayed in Ontario.

Either Fred or Pat can get divorced in Ontario, or they can apply jointly for divorce in Ontario. Why? Because Fred still meets the residency requirement that gives the Ontario court jurisdiction. Pat will need to live in Alberta for another 6 months before she or Fred will be able to get divorced in Alberta.

Example 3: John and Martha lived in BC for 8 years before they split up. Martha moved to Nova Scotia and John’s employer recently assigned him to to live and work in France for the next 4 months.

Either or both can apply for divorce in BC. This is because, although John has been posted overseas for several months, he is still “ordinarily resident” in BC and that is what gives the BC divorce court jurisdiction.

Once the facts disclose that a court has jurisdiction, then you have a right to apply to that court for a divorce. A rookie clerk might not know all the rules but you do now so stand up for your rights.