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MAINTENANCE AND SUPPORT - Courts - Jurisdiction - Ordinary residence

Tuesday, March 05, 2019 @ 8:27 AM  


Lexis Advance® Quicklaw®
Application by the respondent for an order from the court declining jurisdiction in favour of the Arizona court. The parties met and began dating in Arizona in 2008. The claimant moved in with the respondent in 2009. The claimant was American. The respondent was a dual citizen of Canada and the United States. She conceived a child using a sperm donor in 2008. She was the only parent listed on the child’s birth certificate. In 2011, the respondent purchased an investment property in Vancouver. The parties were married in Vancouver in 2014 and moved into the investment property. In 2017, the parties listed the Vancouver home for sale and moved back to Arizona because of financial difficulties. In March 2018, the respondent filed a petition for dissolution of marriage in Arizona. The claimant filed an appearance in the Arizona proceedings, applied to set aside a protection order granted to the respondent, and applied to dismiss the petition on the basis that Arizona lacked jurisdiction. The Arizona court found it had jurisdiction to deal with the petition. The claimant filed the within proceeding seeking a divorce, sole custody, child and spousal support, and an unequal division of family property.

HELD: Application allowed. The claimant had not established that the parties’ move to Arizona in 2017 was only temporary. Her personal connections to Canada were nominal at best. It was neither party’s intention to return to live in British Columbia. The claimant did not maintain a settled routine of life in British Columbia after the parties’ move to Arizona. She was not ordinarily resident in British Colombia for one year prior to commencing her proceedings. The court did not have jurisdiction under the Divorce Act. The court had presumptive jurisdiction to entertain the claimant’s property claims under the Family Law Act. The claimant’s property claim had a very weak connection to British Columbia. Jurisdiction was declined as the Arizona court was the more appropriate forum.

English v. McCurdy, [2019] B.C.J. No. 103, British Columbia Supreme Court, S.C. Fitzpatrick J., January 28, 2019. Digest No. TLD-March42019006