As a divorce lawyer in Calgary, I am often asked where the parties have to file their divorce proceedings.
The Divorce Act requires a party to have been ordinarily resident in a Province for at least one year immediately preceding the commencement of the proceeding, in order for that Province to have jurisdiction over the proceeding.
This means that, if both parties live in different Provinces, and each has done so for at least one year, each party may issue proceedings in the Province in which they live, or each may elect to issue proceedings in the Province in which the other lives. As the Divorce Act is federal legislation, in theory, each Province will deal with the issues of whether the parties are entitled to divorce, custody and access to the children, child support and spousal support in the same way. However, procedurally, each Province may have different systems for the parties to navigate to obtain their divorce.
This means that an issue may arise if a party moved Provinces less than one year ago, as that party is no longer permitted to commence proceedings in the Province in which they live. In such a situation they may have to wait until they can satisfy the one year residence rule, or issue proceedings in the Province in which their spouse lives, assuming that the spouse has not relocated within the previous year.
As division of matrimonial property is governed by provincial legislation, each party should consider whether there is any advantage to be gained by commencing a division of matrimonial property claim in another Province. However, the provincial legislation itself will govern whether a party is entitled to commence a division of matrimonial property claim in that jurisdiction.
If you have any questions regarding the above, please do not hesitate to contact me via email here, or via telephone on 403-538-2105.