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. (a) Does the interpretation which has been given to the term "habitual residence" under the Hague conventions differ from that under the common law and P/T legislation

Except to the extent the legislation expressly incorporates a different definition or the context requires a different approach to carry out the legislative policy objectives there is no reason to expect fundamentally different interpretations. One caveat to this may be that while the relocation law that has applied in the common law provinces does not acknowledge a parent's right to unilaterally change a child's residence even if that parent exercises sole custody, this may not be case where custody rights are established according to a Contracting State outside the common law provinces. In such cases, whether the parent exercising a right of custody from such place has the right to unilaterally change the child's residence is an incident of the foreign law.

While there appears to be a fundamental difference of opinion on whether domestic definitions should be transported into the Convention as noted by Proudfoot J.A. in Chan v. Chow [82] and Jenkins J. in Medhurst v. Markle[83], as I previously indicated, most judges do not even advert to the dilemma and simply transpose the definition from the Uniform Legislation into the Convention and those that do probably would prefer Jenkins J. decision over Proudfoot J.A.'s. The matter seems almost moot since the definition in the Uniform Legislation reflects the case law that had developed under the Convention and other Hague Conventions as noted by various text writers.

In Manitoba the Legislature amended the law by enacting The Domicile and Habitual Residence Actwhereby both terms have the same meaning in law. Under the Act, the common law of domicile is abolished and domicile and habitual residence are treated as the same thing. The domicile and habitual residence of each person is in the state and a subdivision thereof in which the person's principle home is situated and in which that person intends to reside. Unless a contrary intention is shown, a person is presumed to reside indefinitely in the state and subdivision where that person's principle home is situated. The statute essentially re-defines domicile for adults of full capacity in terms of habitual residence as the term is interpreted in the common law provinces and institutes a statutory presumption of intention. However, a person may only have one domicile or habitual residence at any time and cannot abandon a domicile or habitual residence until he or she has acquired another (contrary to the common law doctrine of reverter). Although the domicile of dependency is abolished, special rules apply for mentally incompetent persons and for children who continue to have domiciles and habitual residences that are different and distinct. While a child's domicile reflects the parents' as a matter of law, a child's habitual residence depends on where the child normally and usually resides, which reflects Quebec law. Having said this, since children usually live with their parents, the distinction will be more imagined than real in most cases.

In Fareed v. Latif [84], a wife petitioned for divorce and claimed a division of family property under The Marital Property Act. The husband applied for a stay of proceedings or dismissal on the ground the Manitoba court lacked jurisdiction. Mercier J. held that the husband's principle home and hence his domicile and habitual residence were in Egypt while the wife's were in Manitoba. Accordingly the courts had jurisdiction to decide support if they chose to do so although there could be enforcement problems. The Marital Property Act applied if the parties' last common habitual residence was in Manitoba. Mercier J. held that the parties' last common habitual residence was a matter of fact that he could not decide on the conflicted affidavits and left the matter to the trial judge. In deciding whether the Manitoba court had jurisdiction to deal with divorce under the Divorce Act, Mercier J. applied the same case law referred to above with no indication that The Domicile and Habitual Residence Act had any effect on habitual residence.

In L. (TI) v. F. (JL) [85], an issue arose whether a Manitoba court had jurisdiction to hear an adoption. The adoptive parents were both born in Manitoba and had resided in the province all their lives wanted to adopt a child who was born in North Dakota. The birth mother had agreed to place the child with the adoptive parents and three days after the child was born did so. The application was dismissed because the child had not resided in Manitoba as required under the local adoption legislation. Although the child was domiciled and habitually resident in North Dakota under The Domicile and Habitual Residence Act s. 4 because his birth parents resided there and he was born there domicile and habitual residence were irrelevant under the adoption legislation. All that was required was that the child reside in Manitoba prior to the adoption, which he did after the mother placed him there. That the birth father had not agreed or did not even know was irrelevant to simple residence.

On the other hand, in Moggey v. Lawler [86], Clearwater J. seemed to equate ordinary residence with habitual residence contrary to what appeared to be the clear words of the Act. The parents cohabited in North Dakota without marrying for two and half years until their child was 14 months old. The parents signed an agreement giving the father custody and the mother access. Six months after separation, the mother married and moved with the child to Manitoba. The mother claimed custody in Manitoba and the husband claimed in North Dakota. Although the mother and child were American citizens, the mother had applied for permanent resident status in Canada for both of them. Clearwater J. held that Manitoba had jurisdiction to decide custody of children who are ordinarily resident in Manitoba and then noted that under The Domicile and Habitual Residence Act, no one can have more than one domicile or habitual residence. However, the court should only exercise that jurisdiction if it had a real and substantial connection with the subject matter of the litigation. Clearwater J. held that regardless of the terms of the parties' agreement or that the father had been a major caregiver for extended periods of time until he was called up on active service, the child had been under the mother's care for the majority of her life with the knowledge and concurrence of the father for an extended time. The child was not surreptitiously removed from North Dakota and had a real and substantial connection with Manitoba in fact given the time she had lived there. Clearwater J. seemed content to base ordinary residence on the facts of the case without regard to who was entitled to de jure custody. This reflects what I understand to be the dominant position in Quebec to decide habitual residence but not necessarily the position in the common law provinces with respect to ordinary residence and/or habitual residence.