A Q&A on Divorce Jurisdiction Issues
Gary Bhattal, Calgary Family Lawyer
How long must you be resident in a province before you can file for divorce?
Section 3(1) of the Divorce Act stipulates that a court has jurisdiction to hear and determine a divorce proceeding if either spouse has been an “habitually resident” in the province for at least one year immediately preceding the commencement of the proceeding.
What happens if my ex and I initiate a divorce proceeding in different provinces on different days?
The court in which a divorce proceeding was commenced first has exclusive jurisdiction to hear and determine any ruling – the second divorce proceeding is deemed to be discontinued.
Which province is considered the ‘home’ of my child?
When the matter involves custody of the children, a child is habitually/ordinarily resident in the place where he or she last lived with both parents.
What do I do if my ex disappears after a separation without informing me where they are living?
If you have lost contact with your ex and are unsure of where to serve them with a court document, then a substitutional service order may be required. Substitutional service requires permission from the court and the application must be supported by an affidavit (sworn statement of facts). The affidavit should outline why service is impractical, outline an alternative method of service and why the alternative method of service is likely to bring the document to the attention of the person to be served. As an example, you may not know where your ex is residing, but you know they’re active on social media - consequently, service via Facebook may be appropriate.
With child custody applications, does the court allow one parent to change a child’s ordinary residence without the other consent?
No. As tested in Naibkhil v Qaderi, ABQB 458, 2013, the court was faced with disputed facts surrounding the relocation of a child from the family’s habitual residence in British Columbia to Alberta. Despite the cross-province move, it was ordered that BC was the proper jurisdiction to hear the custody/access application because that was where the child was ordinarily resident.
If you have questions regarding separation and divorce across provinces, get in touch with the team of family lawyers at Crossroads Law. Your first 20-minute consult is absolutely free.
