The Meaning of "Ordinary Residence" and "Habitual Residence" in the Common Law Provinces in a Family Law Context

Residence, Habitual Residence, and Ordinary Residence in the Canadian Common Law Provinces (continued)

3. (b) Critical differences between Quebec and the common law provinces

While it appears that Quebec courts and the courts in the common law provinces decide cases under the Convention and the Divorce Act in similar ways, there appear to be a number of differences as a matter of principle in how the courts approach the various jurisdictional factors. Four points of distinction stand out and are worth comment.

(i) Do habitual residence and ordinary residence mean the same thing?

Since the concept of ordinary residence does not form part of Quebec family law, it appears that when the issue has arisen, the Quebec courts have interpreted them as meaning the same thing, which is emphasized by the fact that the English language version of the Divorce Act makes ordinary residence the main jurisdictional consideration while the French language version uses habitual residence (réside habituellement). Quebec courts routinely decided jurisdiction under ss. 3, 4, & 5 of the Divorce Act, according to habitual residence but used the early cases from the common law provinces that purported to decide the issue on the basis of ordinary residence. On the other hand, if civil lawyers were asked whether the traditional definition of "ordinary residence" meant the same as their definition of "habitual residence" they would probably answer in the negative. Clearly, it is unacceptable to have the same jurisdiction section meaning something different in Quebec than in the rest of the country.

It is even more difficult to answer this question in the common law provinces. The concept of "habitual residence" is a civil law concept not a common law concept and when it was incorporated into the law of the common law provinces it was given a spot somewhere between "ordinary residence" and "domicile". While habitual residence was less technical and legally driven that domicile, and, like "ordinary residence", primarily a question of fact, it involved a more significant and enduring intention than ordinary residence. Over the years, the two concepts have drifted together in the way the common law courts apply them. Although the English courts and academics seem to accept that the two concepts now mean the same thing, they may be more closely aligned with Continental Europe than Canada on this issue in the sense that I am not convinced there would be anything like unanimity on the point here. In particular, many Canadian common lawyers and judges would have problems with the idea that the same intention is needed for both, that a person can have only one ordinary residence or more than one habitual residence as a matter of law. Having said this, I suspect that judges and lawyers would usually reach the same conclusion if asked to identify a person's habitual residence and ordinary residence on a set of facts in most cases.

(ii) Is intention relevant to habitual residence?

The Quebec courts and common law courts clearly disagree on this as a matter of principle. Professor Goldstein[87] is of the view that Quebec law denies that "intention" has any role to play in deciding a person's habitual residence except as an incidental consideration in unusual cases such as to distinguish between permanent presence or limited term presence or sojourns. Common lawyers are equally emphatic that intention is a critical consideration in deciding a person's habitual residence in the sense that a person does not acquire a habitual residence in a place unless he or she intends to reside there indefinitely.

(iii) Should a child's habitual residence revolve around the child's connections to a place and his or her intention (assuming it is relevant) or is a child's habitual residence dependant on his or her parents or other custodial person?

Traditionally common law courts have related a child's habitual and ordinary residence to that of the parents. The fact that young children do not have any reliable intention and live where their parents require them to live probably explains the linkage as set out in s. 22(2) of the Children's Law Reform Act in Ontario. The law is less clear with older children but the common law rule still seems to be that so long as the parents decide where the child will live the child's habitual and ordinary residence depend on the parents' or in unusual cases on the ordinary/habitual residence of a non parent exercising custody by court order. In this latter case, I would suggest that a court may decline to change a child's habitual residence with the adult's if it is not in the child's best interest to do so by analogy to the case law that developed around the domicile of dependence of a mental incompetent, although I admit I have no authoritative case law on point.

Since "intention" is legally irrelevant under Quebec law, a child's habitual residence is usually regarded simply as a question of fact to be decided by reference to all the circumstances of a case not tied to the parents' or custodial person's actions and intentions.[88]. This would seem to be a fundamental difference between the way a child's habitual residence is decided in common law provinces and Quebec and probably reflects the way common law courts decided a child's ordinary residence.

In Manitoba[89],a child's habitual residence is the state and subdivision thereof where the child normally and usually resides. This appears to conform to the Quebec law on point both by focusing on the child's day to day living arrangements rather than the parents' and by focusing on the objective reality of the child's living arrangements rather than the parents' or the child's intentions.

(iv) Does the definition of "habitual residence" in the Uniform Custody legislation enacted in many provinces reflect the definition used under the Convention?

Notwithstanding the BCCA's suggestion in Chan v. Chow, that this is not the case, most common law courts apply the same definition albeit usually without discussion. Since this definition contains strong intention overtones and makes the child's habitual residence dependant on his or her parents or other custodian as a matter of law, I would be surprised if Quebec courts would accept this definition of a child's habitual residence under the Convention or anywhere else for that matter.