The Concepts of Habitual Residence and Ordinary Residence in Light of Quebec Civil Law, the Divorce Act and the Hague Conventions of 1980 and 1996

Part I: Habitual Residence in Quebec Law and Under the 1980 and 1996 Hague Conventions (cont'd)

Question 1: Meaning of "residence" in Quebec civil law

This expression is defined as the act of a person ordinarily residing in a place (see Deleury and Goubau, n. 185, page 235).

1.A Traditional definition of residence

In Quebec law, residence has traditionally been defined abstractly, legally, as [TRANSLATION] "the place where a person resides" (Dictionnaire de droit privé). In material terms "residence" is also (in principle) the building in which a person resides. Accordingly, the concept of "family residence" materialized in articles 401 et seq. Civil Code, i.e. the dwelling of a married couple.

On this point, Sénécal J. stated in the Superior Court in 1996, in Droit de la famille - 2617:[1]

Unlike the concept of domicile, the concept of residence is in principle a strict question of fact that does not involve intention. A person resides where he or she in fact lives. It is of little importance whether the person has been settled at that location for a temporary, definite or indefinite period.

However, some decisions rendered before the adoption of the new Civil Code (C.C.Q.)[2] had already refined this definition, particularly in municipal law, by adding a condition of permanence.[3] The idea was that persons who were occasionally present should not be subject to local law. The laws in question did not indicate, however, whether the residence should be permanent or habitual for the law to apply. The courts have therefore complemented the law in accordance with its purpose.[4]

1.B Meaning under Civil Code: stable and therefore ordinary residence

As a result of article 77 C.C.Q's definition of residence as "the place where [a person] ordinarily resides", Quebec civil law in principle regards "residence" as equivalent to "habitual residence", unless otherwise defined in a specific statute. Accordingly, the civil law in principle currently only attaches legal consequences to habitual residence, not to brief and occasional residence. Residence, which implies stability, is to be distinguished from simple habitation, which refers to a brief or occasional stay.[5] This idea, linking residence and permanence or stability of the stay, has been expressly adopted in article 77 C.C.Q.

Quebec law recognizes that a person may have several habitual residences. In analyzing change of domicile (article 76 C.C.Q.), the Code considers that we should use the principal residence (without specifying). Analysts have considered that we should refer to the place a person [TRANSLATION] "ordinarily frequents", that is, the place he or she [TRANSLATION] "most often occupies".[6] In this sense, habitual residence is very similar to ordinary residence. We should certainly consider that the assessment of the principal residence objectively depends quantitatively on the length of the stay.[7]

Quebec law expressly recognizes that a person may have no habitual residence (article 78(2) C.C.Q.: "A person who has no residence is deemed to be domiciled at the place where he lives").

Finally, as this rule also illustrates, Quebec law distinguishes between residence and mere presence (the place where a person is).

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