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 2: Meaning of the concept of habitual residence in Quebec civil law and under the 1980 and 1996 Hague Conventions

2.A Meaning of the concept of "habitual residence" in Quebec civil law

In Droit de la famille —2617 [8] the Superior Court defined the concept as follows:

It has been held that a person's habitual residence is the place where he or she regularly, normally, customarily lives . . . "habitual residence" requires more durable ties than mere residence . . . Habitual residence is therefore not just where a person is passing through.

Similarly, in S.F. v. C.L.,[9] the Superior Court said in 2003:

26. Residing means "having one's residence at a particular place, living there habitually" [ Dictionnaire Le Petit Larousse, 2003, pp. 884 and 498], while the word "habitually" means "almost constantly, generally" [Dictionnaire Le Petit Larousse, 2003, p. 498 ].

In L.L.A. v. J.P.A.,[10] in 2004, ina divorce proceeding, the Superior Court also said:[11]

Habitual residence is the place where a person lives on a daily and habitual basis.

While in theory the concept of habitual residence seems quite clear, in practice serious problems arise in cases where the situation at issue is related to a change in residence, which is often the case in situations of international child abduction. The problem arises from the fact that the required period of time of the residence is open to question.[12] It is aggravated by the short period of residence generally relied on when the proceeding for the child's return is initiated.[13] The tests used to determine when the new residence becomes a habitual one are not clear and precise enough to remove all doubt. To what extent should the parents' intention of returning to the place of origin be taken into account? How much time should pass before the new residence becomes habitual? Can this happen instantly? In fact, no rule has been codified in Quebec law to determine when the change of residence takes place (unlike change of domicile under article 76 C.C.Q.).

However, in Droit de la famille  — 3713 (D.M.D. v. E.V.),[14] the Court of Appeal summed up as follows the principal rules relating to the habitual residence of a child, in a situation of international abduction. This case, together with Droit de la famille — 2454,[15] are regarded as the key authorities on the subject:

We may summarize as follows these rules, which are largely drawn from Droit de la famille —2454.

Rule 1—The concept of "habitual residence" is to be understood in the ordinary and natural meaning of the words

This rule is largely theoretical.[16] Accordingly, the Court of Appeal found it necessary to add the following rules.

Rule 2—The determination of a child's habitual residence is usually regarded simply as a question of fact to be decided by reference to all the circumstances

This is a question of fact (understood in the sense of material, concrete facts), not of law.

In this sense, in L.Y.P. v. M.E.,[17] in 2004, the Superior Court said, relying on a New Zealand decision[18] rendered in a child abduction case, that habitual residence in a place does not necessarily have to be legal from the standpoint of immigration law: the condition will be met if a person resides in a country for a certain time, even if the person is only tolerated there because his or her legal status has not been determined definitively.

The underlying idea is to facilitate the judge's task (especially in child abduction cases which require more expedient proceedings). In principle, it is a matter of proving material facts and not, like in domicile matters, a matter of verifying whether legislative provisions have been observed or determining the intention of a person.[19]

However, as one writer remarks, this may be overly optimistic[20] because the notion of facts is not specific: What facts should be taken into account? Rules must therefore be developed which will determine how, in practice, residence should be identified.[21]

Certain primary facts are easily identified and usable, such as lasting presence of a person in a place, which has already occurred, or the existence of ties to a place (friends, family, sitter, toys, tax returns, driver's licence, furniture).[22]

Certain other primary facts are difficult to assess. Their meaning can be deduced from the circumstances. Thus, in M.-P.L. v. M.I.B.L.,[23] the Superior Court said at n. 64:

At the time M. left for Quebec, Canada, his place of residence and domicile were in Surinam, where his parents then resided, although temporarily, i.e. during the term of the father's contract with C.

In the circumstances, the four-year term of the work contract of the father, who had taken his family to Surinam with him, though temporary i.e. not for the indefinite future was enough for them to be habitually resident in that country and for the child, age three, also to be considered resident there just before her abduction to Barbados, and then Quebec, even though she had actually spent barely three months there (but 19 months before in Barbados, for the term of a previous work contract).

In addition to primary facts which can easily be determined, the court may "examine the situation in more general terms, going beyond the purely factual situation", that is, examine other circumstances which make it possible to determine inter alia the importance of these facts, or which can even perfect the analysis.[24]

The concept of fact also includes the material acts of the person concerned. The importance of the material acts is often not clearly understood also in terms of the circumstances, in particular the intentions of the parties involved. For example, the purchase of a house as such refers more to a future intention to go on residing in a particular place, as does leaving without leaving any property behind.

Accordingly, the intentionof a person or parent may be regarded as a fact, though immaterial, secondary, subjective which should still be taken into account in understanding the primary facts, such as the importance of the length of a stay.[25]

If, on the contrary, the concept of fact is limited to material and apparent events, the intention of the persons concerned may still be included in the circumstances (not limited to material circumstances), which should be taken into account in assessing the scope of the facts, according to the Court of Appeal.

First, it is worthwhile to point out that the Court has stated that residence is usually a question of fact, without definitively excluding any consideration of a person's intention, and second, that all circumstances have to be taken into account.

In this sense, in C.E.S.,[26] Grenier J. more appropriately distinguished the [TRANSLATION] "objective method" (not taking intention into account) and the [TRANSLATION] "subjective method" (taking into account intention as well as the significant facts, or the circumstances surrounding them) to determine habitual residence.

See also Rees v. Convergia, Convergia Networks Inc.,[27] a case where the Court had to determine whether an employee was resident in Quebec, when he was working there and lived there in a rented apartment:

27. Not only did he not manifest an intention of establishing a residence in Quebec but by his actions and statements Plaintiff's intentions clearly indicated the contrary. He did everything to remain within the legal jurisdiction of the United States or one of its individual states. Indeed, one can conclude that he went out of his way to maintain his residence within such jurisdiction such that he remained habitually resident in Iowa. The temporary stops used by him for purposes of his employment in various places from time to time can only be deemed temporary accommodations or "pieds à terre".

However, to the contrary, we may refer to Chamberland J.A.'s views on a child's residence in Droit de la famille  — 3451 in the Court of Appeal, regarding article 77 C.C.Q.

The choice of this concept of "habitual residence" is deliberate. It avoids any discussion of either parent's intention to establish domicile at one place rather than another. It introduces subjective and specific considerations into determining the domicile of a minor child of a couple no longer living together. Those considerations are more easily measurable by the Court than attempting to determine the parties' intentions.

In that case, Chamberland J.A. reversed a decision of a lower court in circumstances quite similar to those in Re J.(a child born a year before in Ontario abducted by the mother, who took him back to Quebec) on the following grounds:

Accordingly, in my opinion the trial judge incorrectly relied on the respondent's intention "to remain in Quebec" as a basis for concluding that the Superior Court had jurisdiction to rule on the custody of W. Applying the "habitual residence" test, the trial judge should have concluded that at the time he heard the dispute between the parties, in early February 1999, the "habitual residence" of W. . . was in Toronto, Ontario. He was born there and had lived there with his two parents from his birth until January 28, 1999 [the date of the abduction] . . . He had his own room, equipped with children's furniture and accessories, in the house rented by his parents in Toronto. All of these factors objective, concrete factors and independent of the intentions of either parent should have led the trial judge to find that the habitual residence of W. was in Toronto, where his father was still living.

Accordingly, we can infer that in the circumstances of Re J.Chamberland J.A. would certainly not have said that the child's habitual residence was no longer in Australia and would not have attached any weight to the mother's intention, unlike the decision by the House of Lords, but consistent with the traditional view of the concept of habitual residence in civil law.[28]

This rule, which disregards the parents' intention, has been affirmed several times to ensure that parents do not manipulate their own residence in order to alter their children's residence.[29]

In Quebec law, a person's intention to reside in a place therefore cannot alter the circumstances or the primary facts pointing clearly to some other place.

Rule 3—The child's habitual residence will be determined by focusing on the reality of the child, not that of the parents

In Droit de la famille  — 2454, Chamberland J.A. stated this rule:[30]

Only the children's reality should be taken into account in determining the place of their "habitual residence"; in this regard, the Court should look only at the children's experience, because the wishes, desires or intentions of their parents do not count in deciding on the place of their "habitual residence" at the time of their removal.

Accordingly, in Droit de la famille  — 3713 (D.M.D. v. E.V.),[31] the fact that the children's stay in England was initiated by some sort of agreement between the parents, with a resolutory condition, should not have been taken into account.

Similarly, in H.H.N. v. O.X.Ng.,[32] when the mother left Bangkok with her children to go back to her family in Montreal, the Superior Court examined the situation of the parents and determined that they only had a temporary residence in Bangkok, where they were supposed to stay for two years as long as the father's work contract lasted. Then, referring to Droit de la famille  — 2454, the Court concentrated on the specific reality of the children as follows:

[86] Seen from the children's standpoint, this is what confirmed the temporary aspect of their stay: they were only in Thailand as dependents of a father whose visa, work permit and work contract were temporary; in Thailand they lived first in a hotel for expatriates, and then in a compound for expatriates; C attended an English school although his mother tongue was French; this school was a school for expatriates; the children did not speak Thai; at his age Ch in any case did not speak yet; the children had no connection to the Thai population and culture; and the children had some friends, but most of their connections were with family in Montreal.

Similarly, in R.A. v. B.As.,[33] the Superior Court stated:

[30] When the respondent joined Mr. A. in Florida in September 2001 with the children, they moved to the house he rented for the family. The children had their own room, as did their half-sister J. The father looked after them when he returned from work, took them to the playground or to restaurants from time to time, prepared their breakfasts and played with them. [31] Ms. As. remained at home with the children and on December 3, 2001, she enrolled Al. in dance and swimming courses at the YMCA and also enrolled the family . . .[33] In our opinion, the children's lives since late September 2001 indicated that their habitual residence was in Florida and that they had unlawfully been removed to Quebec in February 2002 without their father's consent.

Finally, in 2003 the Superior Court said in S.S.-C. v. G.C.:[34]

[54] Connecticut is where the children have lived since March of 2001; this is where they have attended school, made friends and enjoyed their daily activities. It may be that one of the parents had other plans for the future but, for E..., C... and F..., A, Connecticut, was their habitual residence. [55] Focusing on the children's reality, the Court comes to the conclusion that their habitual residence on June 29 was Connecticut.

Rule 4—To be habitual, the residence must have achieved a certain degree of continuity

This rule relates to the temporal aspect of residence. For this, there must be evidence of some settled existence: the situation must be sufficiently settled. The very purpose of the legislation on child abduction is to avoid unsettling the child, which is not in the child's best interests. That is why he should be taken back to the place of his habitual residence, thereby responding to this need for stability, which is necessary for healthy development.

Accordingly, in J.T. v. L.-A.B., [2002] R.D.F. 50 (S.C.), a case which involved determining where the children were habitually resident when they were taken by their mother to Montreal, when the family was moving from California to New Hampshire, the Superior Court considered that they had not begun to integrate in Massachusetts, as they had only stayed in a hotel for two days.

Nevertheless, the continuity does not have to be absolute: there can be temporary or occasional absences.

However, in terms of legal logic this requirement seems redundant, insofar as interpreting residence itself as a stable stay, without requiring that the term "habitual" be added (see question 1). Nevertheless, these are practices developed under the former Civil Code, in which residence was not equated to habitual residence.

However, in the decision by the Court of Appeal in Droit de la famille — 3451, Chamberland J.A. correctly viewed this as [TRANSLATION] "the affirmation of a desire to make the Civil Code vocabulary correspond to the international law vocabulary", in particular that of the 1980 Hague Convention. The Minister of Justice's comments are in this vein.[35]

Rule 5—Although no minimum period of time is required to acquire new habitual residence, there must be a sufficient period of time for the child to develop ties and to show signs of integration into his new environment

This rule, which consists of two propositions, also affects the temporal aspect of residence. The second proposition is quite clear, and we can put forward that the existence of the new habitual residence requires evidence of integration with regard to the child himself (psychological reports and so on). For example, enrolment in a school, a factor that is external to the child, will be insufficient.

However, the first proposition is ambiguous. First, we might ask whether this implies that new residence can be acquired in a single day. The answer is probably that it can, in theory, but provided that it could be established, which would in practice generally require a certain period of time, according to the second proposition. There is therefore a contradiction between theory and practice.

However, the second interpretation of this rule may actually be that there is no predetermined, fixed period  [36] (unlike the requirement of one year in divorce matters or the five-year period in the 1985 Hague Convention on Succession).

In Droit de la famille  — 3713, the Court of Appeal held that a period of three months was sufficient to establish new residence in England, though the children in question had previously lived in Quebec for seven years. On the other hand, in H.H.N. v. O.X.Ng., [37] it was held that five months in Bangkok was insufficient to change the habitual residence of children who had previously resided in Ontario.

This therefore means that no firm rule can be used here and that everything depends on the circumstances (the parents being in a new place, climate, length of a work contract of the parent on whom the children are dependent and so on) and on the child (depending on his or her personality and age, the child will integrate quickly or slowly).

We must then ask whether, in these circumstances, when dealing with facts that are difficult to interpret, the intention of the persons involved can replace the period of time in order to clarify the scope of the primary fact: the geographical change in the place of residence. Most Quebec precedents do not appear to accept this, but there are some minority judgments to the contrary.

In R.A. v. B.As., [38] the Superior Court considered, in circumstances involving quite rapid and repeated removals, that five months' residence in Florida was sufficient to consider that the children in question had their habitual residence there. It is clear, in this rather difficult case, that if the parents' intention had been used as a relevant factor, no determination could have been made since their intentions were contradictory.

Rule 6—The child should have a real and active connection with his place of residence

Quebec law thereby distinguishes residence and mere presence (the place where a person is), since mere presence does not establish any real connection unless it is associated with temporal stability. Article 76 (2) C.C.Q. also implicitly states that habitual residence is not mere presence.

Thus, in J.T. v. L.-A.B.,[39] the Superior Court said concerning children who had stayed in Massachusetts for two days in transit on the way back from California:

It is apparent that they had not been in Cambridge an appreciable amount of time, that they had no real and active connection with Cambridge.

It can also be argued, somewhat paradoxically, that this rule perhaps means that the loss of habitual residence may be immediate insofar as, just after a move, the child has no further real connection with the former location, even if he still has an intellectual connection with it.

It is also conceivable that this rule is derived from the rules already stated, or illustrates them. Thus, the connection will be real if it is continuous (rule 3) or affects the reality of the children themselves (rule 2). Similarly, the connection with the child will be active if it affects the child's own reality (rule 2) and if it is assessed over a sufficient period of time for the child to develop ties and show signs of integration into the new environment (rule 4).

2.B The meaning of the concept of "habitual residence" under the 1980 Hague Convention on International Child Abduction

This concept is not defined in the Convention. It originates in other Hague Conventions (concept adopted in the 1900 session), and is found in particular in a 1954 Hague Convention, where it is also not defined. Accordingly, the interpretation of these Conventions in the case law gives its meaning to habitual residence.[40]

Though certain rules are generally accepted by all States applying the Convention, there are considerable differences in the way a number of rules have been interpreted, despite good intentions to maintain uniform interpretation to avoid problems relating to domicile.[41]

With these divergent positions in mind, the "factors" relating to habitual residence were stated as follows in C. v. T.:[42]

  • (a) Question of Fact: It is settled law that the habitual residence of a person in a specific country is a "question of fact to be decided by reference to all the circumstances of any particular case". Per Lord Brandon of Oakbrook in Re J. (A Minor) (Abduction: Custody Rights) [1990] 3 WLR 492 (House of Lords) at 504, paragraphs (c)-(d) and H. v. H., [1995] 13 FRNZ 498, at 501, per Greig J.

  • (b) Natural and Ordinary Meaning (settled and voluntary): Greig J. in H. v. H. at page 501 stated: . . . "that the construction of the phrase 'habitual residence' has no particular legal magic. It is to be construed in the ordinary meaning of the words. The essence of 'habitual' is customary, constant, continual. The opposite of that is casual, temporary or transient."

  • (c) Continuity: There is required a degree of continuity to enable habitual residence to be described as settled. Refer Sir Stephen Brown P. in V. v. B. (A minor) (Abduction) [1991] 1 FLR 266 at 271.

  • (d) Intention: Lord Brandon of Oakbrook in Re J. above at page 504 paragraph (e) held that a person may cease to be habitually resident in one country in a single day if that person leaves it with a settled intention not to return but to take up long term residence in another country instead. Lord Brandon however continued that such a person cannot become habitually resident in the second country in a single day. He continued ''. . . an appreciable period of time and a settled intention will be necessary to enable him or her to become so.''

  • (e) Termination and Change of Habitual Residence: It is well accepted. . . that habitual residence can be terminated in one day. Refer Re J. above.

The principal rules derived from the international case law are therefore as follows:

Rule 1—Habitual residence must be construed in accordance with the ordinary and natural meaning

The purpose is to avoid a difference of interpretation by the courts that would result from the use of a legal concept such as domicile.

Re J. (A Minor) (Abduction: Custody Rights); C. v. S. (Minor)[43]:

. . . the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains.

The result of this is that by ordinary interpretation "habitual" residence implies a degree of permanence. See A. v. A.:[44]

. . . place where the minor carries out his activities, where he has been established with a certain degree of permanence, the centre of his emotional and daily experiences.

See also J. v. J.: [45]

. . . consideration of the question of habitual residence under the Convention is primarily a matter of making an overall assessment of circumstances which may be observed objectively such as the length of sojourn, existing social ties, and other... or occupational nature which may indicate a more permanent attachment to one country or the other.

Rule 2 —Residence is a question of fact depending on circumstances

This is, in principle, a question of fact, not of law (and therefore is not dependant on the domicile of another person or on the registered place of residence). This rule is generally recognized in the common law countries and in other legal systems.[46] For common law countries, the authority cited is the House of Lords' decision in C. v. S. (Minor):[47]

. . . a question of fact to be decided by reference to all the circumstances of any case

In this regard, we may also mention the document "Report of the Third Special Commission Meeting to Review the Operation of the Hague Convention on the Civil Aspects of International Child Abduction (17-21 March 1997)", at paragraph 16:

[16] Alternating custody agreements, or 'shuttle agreements', might give rise to problems in determining the habitual residence of the child. The question arises whether such agreements may determine habitual residence in a way that would be binding on courts requested to order the return of the child, e.g. by including an additional clause that non-return of the child on the date agreed upon constitutes unlawful retention under the Convention or other kinds of choice of court clauses. Such choice of court clauses do not fall to be recognised under the Convention, however, and parties to such an agreement should not have the power to create a habitual residence that does not match with the factual habitual residence of the child. This is, firstly, because the concept of 'habitual residence' under the Convention is regarded as a purely factual matter and, secondly, because the Convention provides for a very specific remedy applicable in cases of emergency and is not meant to solve parental disputes on the merits of custody rights.

Therefore, the existence of an agreement resulting from a meeting of the minds of the parents should not be binding on the courts if it does not correspond to the factual situation.

However, there are statements in English cases which appear to contradict this rule. In Re S. (Minors) (Abduction: Wrongful Retention)[48] the Court affirmed[49]:

. . . it seems to me plain that where both parents have equal rights of custody no unilateral act by one of them can change the habitual residence of the children, save by the agreement or acquiescence over time of the other parent, or court order determining rights of residence and custody.

This suggests that the intention of parents, or even a court order, could possibly change the habitual residence of a child; but this statement may only be a generalization, where the two situations of fact in question eventually do result in such a change, rather than a statement that these two factors may directly alter residence in the absence of a change of place.

Further, some cases directly challenge the notion that the question is purely one of fact. In Silverman v. Silverman,[50] the U.S. Eighth Circuit Court of Appeals held:

It is not a question of pure fact, to be decided without reference to statutory language and established legal precedent . . . it is imperative that parents be able to assess the status of the law on habitual residence and wrongful removal and retention. 239 F.3d at 1072-73. If habitual residence is treated as a purely factual matter, to be decided by an individual judge in individual circumstances unique to each case, parents will never be able to guess, let alone determine, whether they are at risk of losing custody by allowing their children to visit overseas or in allowing them to make international trips with an estranged spouse.

Rule 3—Role of parents' intention

There are profound differences between the cases regarding the role of intention. [51] One moderate interpretation, undoubtedly recognized by all systems, is that in exceptional cases it can be one of the circumstances useful for clarifying especially difficult facts (3-A). A more extreme interpretation which in my opinion is proper to the common law, but which is disputed in some systems (such as in Quebec law) considers that it is a normal condition of a change of residence (3-B).

Rule 3-A—The parents' intention, whether or not specified in a written contract, is one of the circumstances to be taken into account to determine whether a stay in a place is temporary (in case of doubt): the exceptional subjective approach

Thus see C. v. C.:[52]

(Résumé: where a child has not been present in a particular forum on a long-term basis one should focus on the mutual and expressed intent of the parents when they moved to that place).

Because of the short time spent by the child, and his youth (two years old), it becomes necessary to take the parents' intention into account to understand the meaning of the stay (whether temporary or not). In such an analysis, the Court is looking not only at the past but at the future as well.

See also Re A. (Abduction: Habitual Residence): [53]

It is necessary to look not only at the time which it was intended that the child should spend in Greece but also at the purpose of his visit. The time was a maximum of 6 weeks, the purpose was as I have described. It included a purpose akin to holiday contact . . . That contact was, as I have said, to enable not only the father but the father's extended family to see the child.

See also Cass Civ 1ère 16/12/1992:[54]

The decision mentions that the Xs had planned, before their departure [to France], that the child would go back to Canada with his mother; it adds that Mr. X did not provide evidence of a new "family arrangement" indicating that his wife and their child would move to France to live with him; accordingly the Court of Appeal, addressing the conclusions raised, legally justified its decision.

However, some cases have gone further and considered that the intention of one or more parents was a necessary factor in a change of residence.

Rule 3-B—The change of residence requires evidence of a settled intention to abandon the former residence, PLUS a settled purpose to reside at new the location

Essentially, these cases dispute the idea that habitual residence can be determined directly from the facts. In F. v. A., [55] the Court refused to consider calculating the period of time spent in a place:

Mr. F. attempts to support his position that Italy is C.'s habitual residence by counting the number of days the child was in Italy versus the United States. Habitual residence can rarely be determined by the mere calculation of the periods of time that a child has spent in various locations. A longer stay in one location may not necessarily compel the conclusion that the place has qualified as the child's habitual residence . . . Even if the court accepts that there was substantial time spent in Italy, presence alone in a country is not sufficient to confer habitual residence. It must be accompanied with an element of intent which approximates a "settled purpose" (In Re Bates, infra.)

From this standpoint, it is rather the intention behind the period of time that makes it possible to determine the place of habitual residence. This factor of intent is a state of mind particular to the parents making it possible to determine the existence of a habitual residence. [56] A relative and subjective concept of time is adopted, recognizing that in principle this time cannot be measured objectively.

The key case favouring a subjective view of time is R. v. Barnet London Borough Council ex parte Shaw,[57] per Lord Scarman:

. . . and there must be a degree of settled purpose. The purpose may be one or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. That is not to say that the propositus intends to stay where he is indefinitely. Indeed his purpose while settled may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode, and there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.

In In Re Bates,[58] the Court used this test to determine a person's habitual place of residence, describing it as the "governing principle for ascertaining the elements of habitual residence".

In Re J. (A Minor) (Abduction: Custody Rights); C. v. S. (Minor),[59] the House of Lords also stated:[60]

A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so.

More recently, see Al Habtoor v. Fotheringham,[61] where Thorpe L.J. said at page 966, at paragraph 37:

. . . Mr Everall submits that the judge set the test too high when she concluded ... 'this family never settled'. Mr Everall submits that the test is not whether the family was settled in Dubai but whether their residence was for a settled purpose, which might be either a purpose of short duration or conditional upon future events.

In Application of Ponath, 829 F. Supp. 363 (D. Utah 1993) HC-E-Usf 144, the district judge wrote that a person could not be considered to have a habitual residence in Germany if they were being kept there against their will: mere presence in a place for a certain time, with no intention to be there, cannot amount to habitual residence. Intention is therefore essential from this point of view.

In the United States, the leading case is the decision in Mozes v. Mozes, in which the United States Ninth Circuit Federal Court of Appeals,[62] per Judge Kozinski, explained that the temporal factor necessary to determine whether residence is habitual cannot be objective, since it depends upon the judge's period of observation: two months, several years, etc. In his view, this is why the subjective intention of the persons must be taken into account. He therefore adopted a subjective approach to time, according to which the more settled the intention, the less time would be required in the new place. The factor of intention replaces the period of time.

Nevertheless, the quantitative dimension is not entirely excluded in this view, as the House of Lords recognized in In Re J., at least in acquiring a new residence, "an appreciable period of time" is also necessary. In Mozes v. Mozes, Judge Kozinski also said:

While the decision to alter a child's habitual residence depends on the settled intention of the parents, they cannot accomplish this transformation by wishful thinking alone. First, it requires an actual change in geography. . . Second. . . it requires the passage of "[a]n appreciable period of time". C.v. S. (Minor...).

The reverse of this relationship is also true: the longer the stay in a place, the less need there is to consider the qualitative aspect of the settled intention to reside in a place. The qualitative aspect here relates to the strength of the intention. This subjective approach is certainly open to considerable evidentiary problems, leading to uncertainty, which is not desirable in child abduction cases. Additionally, it would appear to be difficult to apply if the two parents have different intentions.

However, the judge sought to limit this uncertainty by proposing certain rules. He tried to classify the situations into three categories: (1) the family as a unit had a settled purpose to change their habitual residence, even if one parent had regrets or greater hesitation, (2) the stay was clearly intended to be temporary, or finally (3) intermediary cases in which a parent agreed that a child would stay abroad for an indeterminate period, with no real consensus, in which case the change of residence should not be recognized. In general, according to Judge Kozinski, when the parents disagree, there is no settled intention for the child's residence to change quickly.

In the United States, we must also refer to the Third Circuit Court of Appeals' judgment in Feder v. Evans-Feder:[63]

Guided by the aims and spirit of the Convention and assisted by the tenets enunciated in Friedrich v. Friedrich and Re Bates, we believe that a child's habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a "degree of settled purpose" from the child's perspective.

This position is widely held in the common law countries.[64]

In A. v. A. (Child Abduction),[65] the Court stated:

I consider that when, in the latter sentence, Lord Brandon refers to a settled intention being necessary to constitute habitual residence, what he meant was a settled intention to take up long-term residence in the country concerned. That being so, in my judgment, the mere fact of even 8 months' residence in Australia will not have made these children, or any of them, habitually resident there, or indeed made the father or mother habitually resident there.

In that case, the Court unhesitatingly held that the mere length of the stay was insufficient without intent. In these cases it is quite clear that the idea of a settled purpose/purposeful design/mental elementis an essential requirement, not an additional factor, among others, to be used in exceptional cases.

However, in Re B. (Minors) (Abduction) (No 2)[66] Waite J. also distinguished this requirement from the one necessary to establish a new domicile, as follows:

Domicile and habitual residence are essentially different concepts. The acquisition of a domicile of choice requires a combination of residence and intention of permanent or indefinite residence (see Dicey and Morris, Conflict of Laws (11 edn), p. 128). A far more wide-ranging inquiry is needed to establish those elements than is appropriate or necessary when the court is dealing with the much simpler concept of habitual residence. That is a concept which depends solely upon showing a settled purpose continued for an appreciable time. It follows, therefore, that the detailed type of inquiry into presumed intention which characterises domicile proceedings is inappropriate when the court is dealing with issues of habitual residence. In the latter case it is normally sufficient for the court to stand back and take a general view. A settled purpose is not something to be searched for under a microscope. If it is there at all it will stand out clearly as a matter of general impression.[67]

In view of this position, other cases, essentially from systems other than the common law, have held that the intention of one parent is not sufficient and that we must rely on objective facts.

In C. v. M.,[68] the Stockholm Administrative Court of Appeals held that despite the fact that the mother intended to return to Sweden, her daughter had lived in Texas for over two years before the removal and retained her habitual residence there.

Even at common law, however, there are New Zealand cases that do not favour this subjective approach.[69]

Finally, we must refer to Armiliato v. Zaric-Armiliato. [70] In my view, Pauley J. gave a very enlightening summary of the entire intellectual process relied on by the common law judges:

. . . as Judge Kozinski has observed, "the most straightforward way to determine someone's habitual residence would be to observe his behavior." Mozes, 239 F.3d at 1073. Such a determination would be based strictly on objective criteria such as how long the child resided in a state and whether her life was centered around a particular location. However, merely evaluating objective criteria could skew the results depending on what period of time one studied. . . . To avoid such pitfalls, the English courts require a "degree of settled purpose" in order to establish habitual residence . . . The "settled purpose" principal is difficult to apply to young children who generally are unable to articulate reasons . . . Although the "settled purpose" of a small child like A. is elusive, the principle is informed by the subjective intent of those entitled to fix the child's residence . . . Determining intent when the parents disagree about their child's habitual residence is an Augean chore. In such circumstances, it is necessary to look beyond the subjective intent of the parents to the objective manifestations of that intent. . . . One of the objective manifestations of intent is the relative period of time the parties resided in the alleged habitual residence. . . . Whether the parties resided in the residence on a temporary or conditional basis is also significant. . . . The steps the parents have taken to acclimate their child to her surroundings is another objective manifestation of intent to habitually reside in a locale.

Accordingly, beginning with a purely objective approach, derived from the principle that residence is a question of fact, reason quickly dispenses of it after finding that such an approach is necessarily tainted by subjectivity, in favour of an openly subjective approach, requiring a settled purpose as a condition of law. However, as such an intention cannot be applied directly in the case of a child, it must be identified through the intention the parents had regarding their child. Another problem is then encountered in some cases, that of a divergence between parental intentions. If the subjective approach then results in an impasse, it will be necessary to return to an objective approach using objective facts, such as the length of residence, or efforts to integrate the child into the environment, taken as objective manifestations of intent, to show a common intention.

It is a reversal of the objective analysis of facts that we would have expected and a choice in favour of the subjective analysis of the parents' intention, an analysis requiring reference to objective factual information to discover whether there was a common intention regarding the child.[71]

In the end, all of these mental gymnastics move habitual residence significantly closer to domicile, even if the intention has nothing to do with permanence: as one writer said, the difference between the two concepts is only a question of degree, not of kind.[72] Apart from its major problems and the resulting unpredictability, this is the reason why the majority of cases in Quebec civil law have refused to be drawn into this analysis and have been accused of taking a "superficial" approach (Judge Kozinski).

In any event, we understand that the case law regarding this condition is far from clear and it is difficult to identify definite rules from it, but the two trends we identified exist side by side.

Rule 4—The child’s reality or automatic dependence on parents

Some cases emphasize the child's reality, rather than the parents' reality. However, the case law is not unanimous on this point. There is a strong trend at common law to link the child's residence to that of a parent or parents having custody or parental authority. Finally, these two positions could be reconciled.

Rule 4-A—Favouring child’s reality (child-centred model)

In the decision rendered by the Swedish Supreme Administrative Court,[73] a child's integration into the new environment was considered to be a condition for acquiring a new residence. Similarly, in the U.S. case of Friedrich v. Friedrich,[74] the Court said at 1401:

To determine the habitual residence, the court must focus on the child, not the parents, and examine past experience, not future intentions . . . A person can have only one habitual residence. On its face, habitual residence pertains to customary residence prior to the removal. The Court must look back in time, not forward.[75]

See also Panazatou v. Pantazatos:[76]

Although there is no question that the parties intended at some future time to permanently reside in the United States, habitual residence cannot be confused with domicile. To determine habitual residence the Court must focus on the child and examine past experience not future intentions. Friedrich v. Friedrich, 983 F.2d 1396, 1401 (Sixth Circuit 1993). The greater portion of the child's life was spent in Mykonos as well as the seven months preceding the mother's departure in September of 1996 without the father's consent.

Rule 4-B —Automatic dependence on the parents and consideration of their intention (dependency model)

To the contrary, in Mozes v. Mozes, the Ninth Circuit U.S. Federal Court of Appeals,[77] per Judge Kozinski, unhesitatingly held:

. . . the broad claim that observing "la réalité que vivent les enfants" [the children's reality] obviates any need to consider the intent of the parents, Y.D., [1996] R.J.Q. at 2533, is unsound.

Similarly, in C. v. S. (minor: abduction: illegitimate child),[78] Lord Brandon held:

where a child of J.'s age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers.

In In Re A.[79] the judge followed the rules set out in In Re B (minors: abduction) (No 2) by Judge Waite, considered as principles at common law:[80]

1. The habitual residence of the young children of parents who are living together is the same as the habitual residence of the parents themselves and neither parent can change that without the express or tacit consent of the other or an order of the court.

However, certain judges question the meaning of this connection between parents and children. Refusing to see any automatism resulting from the law, they regard it simply as a general finding of fact.[81]

Rule 4-C—The settled purpose must be from the child's perspective

Finally, we should note the intermediate position of the U.S. Third Circuit Court of Appeals in Feder,[82] which expressed this idea as follows:

[A] child's habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a "degree of settled purpose" from the child's perspective ... [A] determination of whether any particular place satisfies this standard must focus on the child and consists of an analysis of the child's circumstances in that place and the parents' present, shared intentions regarding their child's presence there.

In Feder the Court applied this rule as follows:

E. moved, with his mother and father, from Pennsylvania to Australia where he was to live for at the very least the foreseeable future, and stayed in Australia for close to six months, a significant period of time for a four-year old child. In Australia, E. attended preschool and was enrolled in kindergarten for the upcoming year, participating in one of the most central activities in a child's life. Although Mr. and Mrs. F. viewed Australia very differently, both agreed to move to that country and live there with one another and their son, and did what parents intent on making a new home for themselves and their child do—they purchased and renovated a house, pursued interests and employment, and arranged for E.'s immediate and long-term schooling. That Mrs. F. did not intend to remain in Australia permanently and believed that she would leave if her marriage did not improve does not void the couple's settled purpose to live as a family in the place where Mr. F. had found work.[83]

Accordingly, the "intentions regarding the children's presence" are what must be considered and not not regarding other questions involving the parents' situation must be considered.

See also Toren v. Toren:[84]

. . . it is clear from the record before the Court that the children's habitual residence was in the United States . . . It was the expectation of both parents that the children would live in the United States for as long as four years. . . . It does not matter that the United States was not intended to be the children's permanent residence, nor that it was intended when they came here that they were to return to Israel in 2000. What may happen in the future ordinarily has little, if any, relevance to whether the children have become so "settled" in their place of residence that it may fairly be described, in the present but by reference to the past, as their "habitual" residence. "The court must look back in time, not forward." Friedrich 983 F.2d at 1401.

Rule 5—The period of time for the loss or acquisition of habitual residence

The cases are also not unanimous regarding the period of time in question.

Rule 5-A—The period of time required to lose residence

The cases appear to accept the idea that a former residence can be lost immediately.

This a priori surprising proposition (is it so easy for it to no longer be habitual?) can only be understood if one takes the subjective approach, attaching critical importance to the future intention of the person concerned.[85] However, it is more difficult to lose residence immediately if it is the past that is examined.

Thus, in Re J. (A Minor) (Abduction: Custody Rights); C. v. S. (Minor),[86] the House of Lords decided that a child who lived in Australia until her departure for England lost her habitual Australian residence on the very day of departure, since her mother, who took her with her, had left the country "with a settled intention not to return to it". [87]

However, in Re S. (A Minor), [88] the House of Lords considered that a child taken to Ireland for two days by his grandparents after living in England had not acquired a habitual residence because the grandparents had no parental authority over the child, and therefore had no right to change his residence against the wishes of the father, who retained that authority. The Court therefore distinguishes situations like the one in Re J., where the removal is carried out by a person with a right over the child, from situations where that is not the case.

We must assume that the reason for this is that one anticipates that the person with the right to alter the habitual residence will in fact be able to do so permanently, whereas residence altered by a person not entitled to do so will only be temporary as it will be open to challenge.

Rule 5-B—With respect to the period of time for the acquisition of the new residence, establishing residence requires a certain time in the new place

According to some cases, this has to be "significant" or "appreciable". The precedent usually cited in common law countries is Re J. (A Minor) (Abduction: Custody Rights); C. v. S. (Minor):[89]

A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so.

However, we find the same misgivings regarding that period of time. This arises when the court considers that either a factual situation of integration has to be determined (integration will depend on many circumstances, such as the openness of the new location to strangers, welcoming procedures and so on), or that there be an intentional element, which itself depends on the circumstances (why the removal took place and so on). Most of the cases examine what occurred in the past at the time of the removal. Others, however, at common law, also take the future into account (i.e., the future intention of parents, ultimately).

For the cases taking the parents' intention into account, it can be argued that the stronger an intention, the faster the acquisition time will be.[90]

In S. v. O.D.,[91] the New Zealand District Court even held that habitual residence could be acquired in Australia immediately, in circumstances where the parents' intention was that the child would remain with the father in Australia indefinitely:

It is settled law that the habitual residence of a child of A.'s age will be the habitual residence of the parent who has his care. There can be no question that Mr. S. has been habitually resident in Queensland for some years. It is my view that when A. left New Zealand with his mother's agreement to stay indefinitely with his father his country of habitual residence changed immediately. In my view, such circumstances are properly and necessary [sic] distinguishable from the situation where a parent takes a child to a new country (as was the situation in In re J.) and in the present circumstances there will be no "appreciable period of time" before the child becomes habitually resident in the country to which he or she is taken.[92]

There are of course cases that have held the opposite, but the circumstances were different.[93]

According to certain comments,[94] there are two trends in this regard, which can be explained if we consider that they reflect situations in which the parents' intention is more or less settled:

  • (a) when the move is for an indefinite, or potentially indefinite, period of time, it is generally held that the child has lost his habitual residence of origin and may even have acquired a new habitual residence (the intention to leave is quite clear);[95]
  • (b) contra, when the move is only intended to be for a limited time, even if lengthy, it has been held that the child retains his former habitual residence throughout the stay abroad (in that case the intention not to settle permanently is stronger than the primary facts).[96]
Rule 6—Continuity of habitual residence

This requirement is found in several cases.[97] Thus, for example, in C. v. T.[98] the Court said:

There is required a degree of continuity to enable habitual residence to be described as settled. Refer Sir Stephen Brown P. in V. v. B. (A minor) (Abduction) [1991] 1 FLR 266 at 271.

Rule 7—Absence or multiplicity of habitual residences
Rule 7-A—Possibility of absence of habitual residence

While the case law generally considers it important for the child to always have a habitual residence, in order to protect him in accordance with the provisions of the 1980 Convention,[99] there are cases that clearly recognize that a child may have no habitual residence.

Thus, in W. and B. v. H. (Child Abduction: Surrogacy),[100] Hedley J. held that a child who had never been in California could not be habitually resident there, but was also not habitually resident in England, even though his (surrogate) mother, with whom he lived, habitually lived in England. He therefore had no habitual residence.

Rule 7-B—Possibility of multiple habitual residences

Similarly, some cases have criticized the possibility of multiple habitual residences, because that would destroy the logic underlying the protection contained in the Convention.[101] However, others have theoretically admitted this possibility in exceptional cases.

There are also cases that recognize a rotation of consecutive habitual residences, in accordance with the period of time spent by the child with one or other parent pursuant to an agreement between them.[102]

2.C Meaning of the concept of "habitual residence" under the 1996 Hague Convention on the Protection of Children

According to the commentators, while certain trial definitions were proposed during the drafting of this Convention, it was thought preferable not to adopt a definition of habitual residence specific to the Convention.[103] As a result, the same concept must be applied for the 1996 and 1980 Conventions.[104]

However, as this concept will then also be used for applicable legislation, it is essential that only one habitual residence be identified, since multiple contradictory laws would be unacceptable. This is why the Convention endeavours to resolve mobile conflicts resulting from changes of residence and why problems in determining such residence continue to torment judges. The acquisition of a new residence is not defined in the 1996 Convention, but Article 7 admits as an alternative that the authority in the new place will have jurisdiction if the child has lived there for a period of a year after the person with custody has or should have had knowledge of the child's removal and if the child has integrated there.

The Convention does not therefore establish a preference over the rules relating to changes of residence. Prof. Lagarde's Explanatory Report simply states that this is a question of fact (as in Quebec law: see Rule 2) and that it is possible to lose habitual residence immediately[105] and immediately acquire a new habitual residence.[106] However, the Commission responsible for the draft Convention refused to [TRANSLATION] "quantify the period of time necessary to acquire a new habitual residence".[107] The same rule has been stated in Quebec law (see Rule 5). However, in cases of unlawful removal, and so of abduction, the year's residence required under Article 7 will not be sufficient if it is established that the child has not integrated (the same solution would exist in Quebec: see Rule 5); at the same time, in accordance with the Convention, if integration is established, it is also insufficient without a period of a year's residence (the solution would be different in Quebec, where there is no minimal length of stay: see Rule 5). Further, Article 7 implicitly recognizes that these two tests are not exclusive, since in addition to the acquisition of habitual residence in the new place ("and" in paragraph 1), one or other of these elements must be established.

Similarly, the absence of habitual residence is governed under Article 6 of the Convention, replacing it by mere presence, as does article 78 (2) C.C.Q. with regard to domicile.[108]

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