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The definition of “habitually resides” from the Children’s Law Reform Act should be used to interpret the phrase in the Family Law Act, Family Law Rules, and the Divorce Act

Ontario

,

Canada

In Bridge v. Bridge, 2022 ONSC 1944, Chown J. considered the meaning of the phrase “habitual resides” in rule 5(1)(b) of the Family Law Rules, O. Reg. 114/99. The rule states that a case which deals with parenting time shall be started in the municipality where the child “habitual resides”. Until recently, the phrase “ordinarily resides” was used but this was replaced with the phrase “habitually resides” effective March 1, 2021. This was coordinated with a similar change in the Divorce Act which took effect on the same date, replacing the phrases a “ordinarily resides” and “ordinarily resident" to “habitually resides” and “habitually resident” throughout the English version of the act.

Facts

The matrimonial home was in Bruce County. When the parties separated in October of 2021, the mother and the three children moved from Bruce County to Simcoe County. Although the move was done without explicit notice to the father, Chown J. found that the father knew that the mother would move with the children to Simcoe County and that he impliedly consented to this move.

What is the definition of “habitually resides” as found in the Family Law Rules?

The phrase “habitual residence” is not defined in the Divorce Act, the Family Law Act, or the Family Law Rules. It is, however, defined in the CLRA at s. 22(2), which states:

A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:

  1. With both parents.
  2. If the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order.
  3. With a person other than a parent on a permanent basis for a significant period of time

It is appropriate to adopt the definition of the phrase “habitually resides” from the CLRA when interpreting the Divorce Act, the Family Law Act, and the Family Law Rules for three reasons:

  1. Rule 5(1)(b) specifically references s. 22 of the CLRA;
  2. Provincial and federal governments took pains to coordinate the language used in family law legislation. The effort to promote uniformity should be acknowledged and respected. It would introduce confusion and reduce the predictability of the law if the phrase “habitually resides” is not given a consistent meaning across all family law legislation that uses the phrase.
  3. The definition in the CLRA is a good one. Interpreting the phrase in accordance with the definition under the CLRA does no violence to its plain, everyday meaning. The plain, everyday meaning of the phrase “habitually resides” does not clearly exclude the possibility that someone has a new “habitual residence” from the day they move to a new place with no intention to return to the old place in the reasonably foreseeable future (para 7).

The children habitually resided in Simcoe County, where they moved with their mother with their father’s implied consent

When the children moved to Simcoe County with the implied consent of the applicant, they became habitually resident in Simcoe County (para 4).

May 20, 2022
Bridge v. Bridge, 2022 ONSC 1944