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

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Endnotes

• [1] J.E. 97-539, [1997] R.J.Q. 1011, [1997] R.D.F. 374.

• [2] See recently Brizard v. Boivin, AZ-50221510, J.E. 2004-640, S.C. Trois-Rivières, February 12, 2004, No. 400‑17‑000623-039. See also:

• [3] See Cloutier v. La municipalité du Lac Simon, [1969] R.L. 519; Ovide Provost v. Roméo Lefort et La corporation municipale du village de St-Chrysostome, [1980] S.C. 1013.

• [4] [1922] 32 K.B. 229.

• [5] E. Deleury and D. Goubau, Droit des personnes physiques, Y. Blais, 1994, n. 262, p. 226.

• [6] Deleury and Goubau, ibid., n. 280, p. 233

• [7] However, if in exceptional cases such a calculation could not adjudicate between the residences, qualitative factors could then be taken into account, such as the use of the premises (management of business, only for vacation and so on). However, we would then be drawing close to the concept of "principal establishment", which is an essential aspect of domicile.

• [8] Supra, note 1.

• [9] [2003] J.Q. n. 10672.

• [10] [2004] J.Q. n. 8586 (S.C.).

• [11] In this regard, the Court referred to the following precedents: Anema v. Anema (1977), 27 R.F.L. 156 (Man. Q.B.); Hardy v. Hardy, 2 R.F.L. 50, [1969] 2 O.R. 875, 7 D.L.R. (3d) 307 (H.C.); Thomson v. M.N.R., [1946] S.C.R. 209, at 231-232; Byrn v. Mackin (1983), 32 R.F.L. (2d) 207 (Que. S.C.); Jutras v. Société Radio-Canada, [1998] R.L. 294 (S.C.); Da Silva v. Jodoin, [1993] R.D.J. 334 (C.A.); Droit de la famille — 2279 [1995] R.D.F. 695 (S.C.), Droit de la famille — 2054, [1997] R.J.Q. 1124 (S.C.).

• [12] E.M. Clive, "The Concept of Habitual Residence", [1997] Juridical Review 137, 142.

• [13] P. Rogerson, "Habitual Residence: The New Domicile?", (2000) 49 I.C.L.Q. 86, 101.

• [14] [2000] Q.J. No. 2967.

• [15] [1996] R.J.Q. 2509.

• [16] As Lord Scarman quite properly said, as adopted by Judge Kozinski in Mozes v. Mozes, HC/E/USf 301: "Though the meaning of ordinary words is a question of fact, the meaning to be attributed to enacted words is a question of law, being a matter of statutory interpretation. So . . . a question of law arises as to the meaning of [habitual residence], even though it arises only at a preliminary stage in the process of determining a question of fact".

• [17] [2004] J.Q. n. 13967 (S.C.).

• [18] H. v. H., [1995] 12 FRNZ 498, pp. 1 and 2, cited at n. 48 of the Quebec decision.

• [19] The intention of individuals is relevant when there is a change of domicile. Case law dating from before the new Civil Code recognized that there was no difference between the concepts of domicile in common law and in Quebec law (Wadsworth v. McCord, (1886) 12 S.C.R. 466, at 478). It was recognized that the change required proof of intention not to return to the former domicile, and that "the animus manendi necessary to change the domicile of origin to a new domicile means a fixed and settled purpose" to abandon the former domicile (Trottier v. Rajotte, [1940] S.C.R. 203). In Trottier v. Rajotte the Supreme Court also said: "A domicile of origin is not lost by the fact of the domiciled person having left the country in which he was so domiciled with the intention of never returning. It is essential that he shall have acquired a new domicile, that is to say, that he shall in fact have taken up residence in some other country with the fixed, settled determination of making it his principal place of residence, not for some particular purpose, but indefinitely". This idea is now expressed in article 76 C.C.Q. Accordingly, in this analytical framework, if the intention concerns residence, it is not used for determining the residence, but is added to it to modify domicile. This interrelationship in the analysis of change of domicile may lead to confusion and suggest that the question of intention is a component or even condition of residence, whereas it is only external to residence.

• [20] J.G. Collier, Conflict of Laws, 3rd edition, Cambridge Un. Press, 2001, p. 55.

• [21] Thus, the question of determining habitual residence is a question of fact, but from the standpoint of appellate courts it nevertheless requires the application of rules, which may eventually lead to a review of lower court decisions.

• [22] Thus, see as a good example N.K. v. R.V., [2004] R.D.F. 572 (S.C.), AZ-50254383, J.E. 2004-1360 (divorce).

• [23] [2002] R.D.F. 982 (S.C.).

• [24] In S.E. v. T.R. [2003] J.Q. n. 11746, the Superior Court in 2003 said, after citing the leading cases in this area: [TRANSLATION] Even considering the situation in more general terms, going beyond the purely factual situation, the conclusion remains the same. The letter of July 15, 2003. . . states that the father was hired on June 14, 2001. The mother then claimed that the two-year assignment ended on June 14, 2003 and that the employment contract had accordingly expired when she left France on June 27, 2003. The family residence was then once again in Quebec. The Court does not agree with this interpretation, since it does not reflect reality. Further, as of today, the father is still working in Paris for S. Additionally, the out-of-court testimony of A. D. clearly indicates that the two‑year period is a bare minimum. When the employment contract was signed in June 2001, neither S. nor the father discussed or even considered his returning to Quebec after only two years.

• [25] This indicates that courts of appeal will be called upon to determine whether the rules relating to the concepts of habitual residence have been correctly applied (cf. Mozes v. Mozes).

• [26] C.E.S. v. E.V., [2002] R.D.F. 874 (S.C.), J.E. 2002-1904.

• [27] S.C. Montréal 500-17-017494-033, 2004-03-11, AZ-50225541, J.E. 2004-975, D.T.E. 2004T-500, at n. 27.

• [28] The judge went on: [TRANSLATION] "As the case is one of illegal removal, I think it would be entirely inappropriate to take facts subsequent to that removal into account to determine the child's place of "habitual residence". The unlawful removal of a child cannot be the basis for a legal change in its domicile. The contrary view would only encourage parents who were dissatisfied with a jurisdiction to take the law into their own hands and change jurisdictions in the hope conscious or unconscious that the courts there would be more sympathetic to their case. The Hague Convention on the Civil Aspects of International Child Abduction is intended to discourage this type of conduct; article 3142 C.C.Q., and as a consequence article 80(2) C.C.Q., are to the same effect and also allow the judicial authorities of Quebec to discourage such conduct, even in cases in which the Act respecting the civil aspects of international and interprovincial child abduction does not apply". This is a very clear statement of an essential reason for not taking the parents' intention into account in determining the child's habitual residence: the purpose is to discourage fraud on the courts and on the law, in the end.

• [29] See also: A.I. v. R.M.C., [2004] J.Q. n. 7484 (S.C. Montréal, July 2, 2004) at n. 21: [TRANSLATION] "It is important to bear in mind that the parents' intention will be of no importance in determining the habitual residence of B., as this question refers essentially to the facts". Similarly, in Droit de la famille — 264, [1997] A.Q. n. 1224 (S.C.), the Superior Court, at n. 63, referring to the comments of Chamberland J.A. in Y.D. v. J.B., [1996] A.Q. n. 2916 (C.A.), refused to take into account a proposed agreement whereby the parents would return to Quebec, while in fact the child who had been abducted had since birth always lived in Martinique (France). In the circumstances, the existence of the agreement was not certain, as the wife's intention was not clearly expressed. This clearly demonstrates the problems regarding the use of intention in making a rapid determination of a child's habitual residence. See also Droit de la famille — 2675, AZ-97026241, B.E. 97BE-583, S.C. April 22, 1997, n. 200‑04‑003138 979, citing the same case: [TRANSLATION] "Under the case law, this concept is a question of fact involving the child's reality, not the intention of the parents". Again, in S.F. v. C.L, [2003] J.Q. n. 10672, the Superior Court said in 2003: [TRANSLATION] "The purely factual test employs objective and concrete factors, independent of the intentions of either parent. Only the child's reality is relevant: moreover, one must look to the past, before the dispute arose, to determine it since it is and cannot be ' in the process of becoming'". On that point, we may also refer in this regard to what was said, although in obiter, by Dalphond J. (as he then was) in the Superior Court in 1999 in Droit de la famille — 3597 (S.G. v. R.S), AZ-00026276, B.E. 2000BE-573, [2000] R.L. 183: [TRANSLATION] "Unlike the concept of domicile, which involves intention (see article 76 C.C.Q.), the concept of residence is purely factual . . . the fact that the father may intend to return to Montréal as soon as he can find employment comparable to what he currently has in Hanover in no way alters the fact that he is currently residing, habitually, in New Hampshire. He has been working in that American state for over two years; he earns his income there and has his apartment there where most of his clothing and furniture are located. Moreover, he pays his taxes in the United States and has ceased filing returns in Canada and Quebec".

• [30] Supra, note 15.

• [31] Supra, note 14.

• [32] [2002] R.D.F. 604 (S.C.), AZ-50129220, J.E. 2002-1248.

• [33] [2002] R.D.F. 429 (S.C.).

• [34] [2003] R.D.F. 845 (S.C.).

• [35] Under article 77 C.C.Q., it is stated that : [TRANSLATION] "The definition introduced by this article incorporates into the Civil Code a very current concept. . . in private international law, that of habitual residence": Comments of Minister of Justice, t. 1, Publications du Québec, 1993, p. 62.

• [36] E.M. Clive, "The Concept of Habitual Residence", [1997] Juridical Review 137, 143, note 31: "That may just be a loose and inaccurate way of saying that no fixed minimum period is required", with reference to the Scots case Cameron v. Cameron, [1996] S.L.T. 313, which seems to be the origin of this rule in the mind of the Quebec Court of Appeal.

• [37] Supra, note 32.

• [38] [2002] R.D.F. 429 (S.C.), AZ-50122487, J.E. 2002-911.

• [39] [2002] R.D.F. 50 (S.C.). This rule was also applied, without much comment, in A.I. v. R.M.C., [2004] J.Q. n. 7484 (July 2, 2004, Montréal S.C.) at n. 25.

• [40] Our study looked at 137 judgments in the INCADAT under Article 3 of the 1980 Hague Convention. We assume that this sample was sufficiently representative of the trends noted. However, from a quick search that we made, the INCADAT bank seems to contain at least 278 judgments on the concept of habitual residence.

• [41] This is not surprising if we consider what a judge recently admitted, in Re R. (Abduction: Habitual Residence), [2003] EWHC 1968, [2004] 1 FLR 216, [24/07/2003; High Court (England and Wales); First Instance] HC/E/UKe 580, quite frankly (at paragraph 57): "The domestic system of law by reference to which for this purpose I have to determine the question of habitual residence, is the domestic law of England. It is the domestic law of England, the view which the law of England attaches to the meaning of the words "habitual residence" when they appear in Article 3 of the Hague Convention. It is the law of England as set out in the authorities to which I have referred . . . On the facts as I have found them either the German court applying German law takes the same view or a different view . . . If it takes a different view then the reality, however elegantly the point is put, is that I am being asked to come to a different view from that which the law of England would direct me to come to by being invited to be beguiled by the different view of German lawyers in relation to German law. My duty in these circumstances is to apply the domestic law of England by reference to the authorities I have mentioned, and in the light of those authorities, applying the relevant principles, the conclusion I have come to cannot be affected by evidence of German law. Equally it seems to me it would not be affected even by the decision of the German court to a different effect. See, however, Re S. (A Child), [2002] EWCA Civ 1941, 27/11/2002; Court of Appeal (England and Wales), HC/E/UKe 490: Questions of habitual residence in relation to Article 3 of the Hague Convention are to be determined by reference to the international jurisprudence, recorded on the Permanent Bureau's INCADAT website". See also in the U.S.: E. Nunez-Escudero, v. S. Tice-Menley, June 26, 1995, US C.A. 8th Circuit, HC-E-Usf 98.

• [42] [2001] NZFLR 1105 [31/08/2001; Family Court at Taupo (New Zealand); First Instance] HC/E/NZ 413.

• [43] [1990] 2 All E.R. 961, 965 (Eng. H.L.)

• [44] A. v. A, 5 October 2001, Buenos Aires court of first instance, [05/10/2001; Buenos Aires court of first instance (Argentina); First Instance], HC/E/AR 487. See also: 1 F 3709/00, Amtsgericht Zeibruecken, 25 January 2001, [25/01/2001; Amtsgericht Zeibruecken (District Court) (Germany); First Instance], HC/E/AU DE 392: "the parties had been ordered to be stationed there, that they had their own home there and that therefore the centre of all their activities was in Israel"; R. and R., 7 January 1999, Juvenile Court of Rome (Italy), Nr. 2450/98 E, [07/01/1999; Juvenile Court of Rome (Italy); First Instance], HC/E/IT 297: "' habitual residence' does not indicate the registered residence, but the place where the child usually spends most of his time. This place, center of the child's life, is without any doubt, England, where L. was born and has grown up".

• [45] Case No. 7505-1995, 9 May 1996, Supreme Administrative Court of Sweden, [09/05/1996; Supreme Administrative Court of Sweden, Regeringsratten], HC-E-SE 80.

• [46] See W. v. O., 14 June 1995, Argentine Supreme Court of Justice, 14/06/1995; Argentine Supreme Court of Justice; Superior Appellate Court, HC/E/AR 362; A. v. A., supra, note 44; R. and R., supra, note 45; J. v. J., Case No. 7505-1995, 9 May 1996, Supreme Administrative Court of Sweden, [09/05/1996; Supreme Administrative Court of Sweden, Regeringsratten], HC-E-SE 80.

• [47] Supra, note 43. See also: F. v. A., 21 April 2004, transcript, Superior Court of California, Placer County, [24/04/2004; Superior Court of California, Placer County (USA); First Instance] HC/E/USs 582: "The determination of a child's habitual residence is a fact-intensive inquiry".

• [48] [1994] Fam. 70, [1994] 1 FLR 82, [1994] Fam. Law 70, [14/07/1993; High Court (England); First Instance] HE‑E‑Uke 117.

• [49] See also: D. v. D., June 8, 1990, Court of Sessions, HC-E-UKs 73.

• [50] 338 F.3d 886 (8th Cir. 2003) [05/08/2003; United States Court of Appeals for the Eighth Circuit; Appellate Court] HC/E/USf 530.

• [51] As the Court properly noted in Harsacky v. Harsacky, 930 S.W. 2d 410 (C.A. Kentucky), HC-E-USs 131: "In keeping with the principle that ' habitual residence' must be judged on a case by case basis, it is not surprising that courts have disagreed as to what factors should be controlling . . . There is also some disagreement as to what extent the intentions of the parents as to present or future residence should bear on the determination of a child's habitual residence under the Convention".

• [52] 25 May 1992, Tel Aviv District Court (Israel) HC/E/IL 357.

• [53] [1998] 1 FLR 497, [13/08/1997; High Court (England); First Instance] HC/E/UKe 176). 

• [54] Appeal No. 91-13119, 16/12/1992, Cour de cassation, première chambre civile (France), HC/E/FR 518, Dalloz 1993, p. 570, note J. Massip (retention in France unlawful as child habitually resided in Canada, although father argued that [TRANSLATION] "family's final move to France was made necessary by his own professional requirements, and his wife returned to Canada for reasons of health". See similarly Ø.L.K, 5 April 2002, 16. afdeling, B-409-02, HC/E/DK 520 [05/04/2002; Østre Landsret (High Court, Eastern Division, Denmark), second level: the Danish Court of Appeal took an agreement by parents into account and considered that pursuant to that agreement a child's stay in Denmark was only temporary (while the mother was hospitalized) and was not to last more than a year. Thus the child retained its habitual residence in England. Similarly, in J. v. J., supra note 46, the Swedish Administrative Supreme Court took the agreement between the parties into account: "In accordance with the agreement cited in the case and confirmed by the court in Virginia, A. is to spend a total of eight years in Sweden until she reaches the age of 18, as compared with four years in the United States. In the light of what has been stated, the Supreme Administrative Court finds that A. was habitually resident in Sweden on 20 August 1995".

• [55] Supra, note 47.

• [56] See Harsacky v. Harsacky, supra, note 51.

• [57] [1983] 2 A.C. 309, 314; [1983] 1 All E.R. 234.

• [58] No. CA 122-89, High Court of Justice, Fam. Div'n Ct. Royal Court of Justice, United Kingdom (1989); in F. v. A., supra, note 47, the Californian Court said regarding this case, using the same quotation, "Despite nearly 20 years of U.S. case law on the subject, the definition which finds broad acceptance by U.S. courts comes from a U. K. case, In re Bates".

• [59] Supra, note 43.

• [60] See also In Re B. (Fam. Div. H.C.J. October 21, 1997, HK-E-Uke 39): "It is . . . well settled that habitual residence refers to a person's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration."

• [61] [2001] EWCA Civ. 186, [2001] 1 FLR 951

• [62] (9th Cir. 2001) 239 F.3d 1067; No 98-56505 (U.S. Court of Appeals) (2001), HC/E/USf 301, cited at No. 29 of the Superior Court judgment.

• [63] 63 F.3d 224, (C.A. Third Circuit), August 24, 1995, HC-E-Usf 83.

• [64] See also Smith v. Central Auth., no. AP/98, High Court, Christchurch, New Zealand (March 2, 1999); State Central Authority and McCall (1995) FLC 92-552, [21/12/1994; Family Court of Australia at Melbourne; First Instance] HC/E/AU 279: "Habitual residence is a question of fact; there are two elements-the fact of residence, and the intention to reside habitually. . . C.'s parents, having parental responsibility . . . are the persons who may jointly form the intention of terminating C.'s habitual residence by removing him to another jurisdiction.". See also C. v. C. (Court of Sessions), Inner House (2nd div.) October 24, 1995, HC-E-Uks 71; Re J.S. (Private International Adoption, [2000] 2 FLR 638; [2000] 3 Fam Law 787 [06/07/2000; High Court (England); First Instance Court, HC/E/UKe 479. In that peculiar adoption case, it was held that a child who remained in Texas for only two days at the time of her birth and was taken by adoptive parents to England, where she remained for five months, had not acquired a habitual residence but retained her residence in Texas. According to the English court, mere presence did not suffice and there had to be an intention by the person who had custody of the child to make England its habitual residence, which was not the case. The Court said: "A child, certainly a child of the age of J.S., cannot herself form an intention about her residence or indeed anything else, so that the law provides that the habitual residence of a child shall be determined by the parents of the child and failing that by whoever has legal responsibility for the child . . . always it seemed to me the outcome was that the term ' habitual residence of a child' envisages a state of affairs based not only on physical presence but with what one might call a mental element on the part of the parent or here the institution having legal responsibility". See also D. v. D., [19/06/2001; First Division, Inner House of the Court of Session (Scotland); Appellate Court] HE-E-Uks 351. In that case the Scottish Court of Appeal considered that parents had not acquired habitual residence in Switzerland despite having moved to that country, because they had no common intention regarding the stay. See, as well, Harsacky v. Harsacky, supra, note 51; In Re A. (Family Div.), H.C.J. July 31, 1995, HC-E-Uke 38; Re B., supra note 60; Morris v. Morris, 55 F.Supp.2d. 1156, 1159 (D.Colo. 1999) HC-E-Usf 306; Walton v. Walton, 925 F.Supp. 453, HC-E-Usf 132; S. v. S., 27 September 1994, transcript, Family Court of Australia (Sydney) [27/09/1994; Family Court of Australia at Sydney; First Instance] HC/E/AU 230; Artso v. Artso (1995) FLC 92-566, [20/03/1991; Family Court of Australia at Dandenong; First Instance] HC/E/AU 252; Laing v. Central Authority (1996) FLC 92-709, [10/10/1996; Full Court of the Family Court of Australia (Sydney); Appellate Court] HC/E/AU 228.

• [65] [1993] 2 FLR 225 [27/10/1992; High Court (England); First Instance] HC/E/UKe 161. See also Re S. (A Minor), 20 August 1996, High Court, transcript; The Independent, 14 October 1996, [20/08/1996; High Court (England); First Instance] HC/E/UKe 181; Re O. (A Minor) (Abduction: Habitual Residence) [1993] 2 FLR 594, [1993] Fam Law 514 21/12/1992; High Court (England); First Instance] HC/E/UKe 159: "She, O, was not of an age at which she could form her own intentions relevant to acquiring habitual residence in any given place. Accordingly, her habitual residence was the same as the habitual residence of the mother, in whose sole and lawful custody she was".

• [66] [1993] 1 FLR 993 at page 989, HC/E/UKe 173.

• [67] To the same effect see F. v. A, supra, note 47; Re A. (Abduction: Habitual Residence) [1998] 1 FLR 497, 13/08/1997; High Court (England); First Instance] HC/E/UKe 176; In re C.L. (A minor); J.S. v. C.L., [25/08/1998; High Court (Northern Ireland); First Instance] HC/E/UKn 390.

• [68] December 18, 1998, Administrative Court of Appeals, 18/12/1998; Administrative Court of Appeals (Stockholm, Sweden)]; HC/E/SE 331. See also L. v. L., 26 June 1994, transcript (Unofficial Translation) Tel Aviv District Court, [26/06/1994; Tel Aviv District Court (Israel); First Instance], HC/E/IL 215: (résumé: Habitual residence refers only to the physical dwelling place of a child and not to an intended future place of residence). See also the Quebec decisions considered below: Droit de la famille — 2454, (C.A.); Droit de la famille — 3451, (C.A.); Droit de la famille — 3713 (D.M.D. c. E.V) (C.A.); S.S.-C. c. G.C., (S.C.); H.H.N. c. O.X.Ng, (S.C.).

• [69] Thus, in Secretary for Justice v. P., ex parte C. [1995] NZFLR 827, [07/07/1995; District Court of New Zealand at Henderson; First Instance] HC-E-NZ 67, the New Zealand Court, which had to decide where the residence of children brought to that country by their mother was located, when they had come to Australia with their mother to try and re-establish the family with the father, who was living there, held that the primary facts pointed toward residence in Australia, as the result of a stay of some six months in that country, although the mother said she only intended to make a trial in Australia and quickly changed her mind. The Court said: "Much is made in this case by Mr. Keys of the respondent's actual state of mind and intention. I think that to place undue emphasis on a subjective test such as this has inherent dangers. While doubtless there is some room for an inquiry into intention, I think it preferable for most emphasis in an inquiry to be based on an objective approach. To suggest otherwise would be to invite evidence given with the benefit of hindsight". Similarly, in K.H. v. S.H., Wellington, AP n. 359/94 (H. Court of N.Z.), April 12, 1995 (HC-E-NZ30), the New Zealand High Court held in 1995 that children habitually resided in California before being taken to New Zealand by the mother, although the parents' status in the United States was only temporary. It also indicated its clear preference for an objective approach, distancing itself to some extent from the subjective approach taken in the leading English cases: "x. I was referred to the judgment of Lord Brandon in C. v. S. (Minor), supra, note 43. Reference is there made to settled intention for an appreciable period of time before habitual residence can arise. With respect that seems to re-introduce some of the concepts which provided the complications to the law on domicile and that, I think, is not to be applied if possible . . . In spite of employment difficulties and money problems the mother and father stayed in the United States and did not attempt to leave on any basis at all. I have no doubt, in my mind, that there was a habitual residence, a customary, constant, continual residence". Finally, in F. v. A., supra, note 47, the Court after recalling the fundamental citation in Ex parte Shaw, supra note 121, added "The intent with which a place is occupied by a family, or by a parent with a child, may play a role in determining whether that place qualifies as the child's habitual residence. Certainly, where a mother and father maintain a joint and shared intent that they are going to settle in a place for an indeterminate time, or for a substantial period of time, a habitual residence will inevitably result. Feder v. Evans-Feder, 63 F.3d 217 (3rd Cir. 1995) [FN22]". From this reference to a recent American case, the question of intent can be seen as a simple finding of fact, dealing with a generality, according to which a common intent would unavoidably lead in fact to the establishing of a habitual residence, rather than an absolute requirement of law.

• [70] No. 01 Civ. 0136 (WHP) (S.D.N.Y. May 3, 2001) 03/05/2001; United States District Court for the Southern District of New York; HC/E/USf 385.

• [71] Reference may also be made to the same effect to the New York Court of Appeals judgment in Brennan v. Cibault, 227 A. 2d 965, 643 N.Y.S.2d (N.Y. App. Div. 1996) [31/05/1996; Supreme Court of New York, Appellate Division, Fourth Department; Appellate Court] HC-E-Uss 135.

• [72] Cohen v. Cohen, 158 Misc. 2d 1018, 602 N.Y.S.2d 994 (Sup. Ct. 1993) [10/08/1993; Supreme Court of the State of New York, Kings County (United States); First Instance] HC-E-USs 145. In that case, the Court expressly used the rules relating to the change of domicile in deciding that children taken to Israel by their father had remained habitually resident in the United States: "Using an analysis borrowed from the cases surrounding the issue of domicile (obviously very analogous to "habitual residence")"; the law is well settled that an existing domicile [substitute habitual residence] continues until a new one is acquired [etc]&. However, in David B. v. Helon O., 164 Misc. 2d 566, 625 N.Y.S.2d 436 (Fam. Ct. 1995) HC/E/USs 149 [08/03/1995; Family Court, New York County (United States); First Instance], the Court, in a note, held that the position taken in that case was contrary to the majority of binding opinions.

• [73] Supreme Administrative Court (Regeringsrätten) (Sweden), decision of 12 September 2001, Case number 7624-2000, (Regeringsrätten), HC/E/SE 447.

• [74] 983 F. 2d 1396 (6th Cir.) (1993).

• [75] See also, using this quotation, Brennan v. Cibault, supra, note 71; Schroeder v. Vigil-Escalera Perez, 76 Ohio Misc. 2d 25, 664 N.E.2d 627 (Ohio Com. Pl. 1995) [09/11/1995; State of Ohio, Court of Common Pleas, Cuyahoga County, Domestic Relations (United States); First Instance] HC/E/USs 154; A. Zucker v. P. Andrews, District court, Mass., 10 avril 1998, HC-E-USf 122. See also Falls v. Downie, 871 F. Supp. 100 (D. Mass. 1994) [28/12/1994; United States District Court for the District of Massachusetts; First Instance] HC-E-USf 141, in which the Massachusetts Court considered that a child taken to that state by its father with the agreement of its mother, who remained in Germany, had acquired habitual residence there after eight months: "To determine the habitual residence, the court must focus on the child, not the parents, and examine past experience, not future intentions. . . . What is required is that there be a 'degree of settled purpose.' . . . In this case, as of August 1994, this twenty-one-month old boy had been living in the United States, with the agreement of his mother, and with the prospect of an indefinite continuance of residence, for eight months. He had become completely accustomed to life in this country with his father and grandparents; he barely knew his mother. It simply defies common sense to suggest under these circumstances that P. was, as of that date, a ‘habitual’ resident of Germany". See also Slagenweit v. Slagenweit, District Court, Iowa, 28 Oct. 1998, HC-E-USf 143; Paz v. Paz, 169 F. Supp. 2d 254 (S.D.N.Y. 2001), [29/10/2001; United States District Court for the Southern District of New York; First Instance] HC-E-Usf 414, aff. by United States Court of Appeals for the Second Circuit on 17 September 2002: Paz v. Paz 47 Fed. Appx. 22; 2002 U.S. App.

• [76] No. FA 960713571S (Conn. Super. Ct. Sept. 24 , 1997) [24/09/1997; Superior Court of Connecticut, Judicial District of Hartford (United States); First Instance] HC-E-USs 97.

• [77] Mozes v. Mozes, supra, note 62.

• [78] Supra, note 43.

• [79] Family Div., H.C.J. July 31, 1995, HC-E-Uke 38).

• [80] [1993] 1 FLR 993, p. 995. See also Robertson v. Robertson 1998 SLT 468, 07/05/1997; Inner House of the Court of Session (Second Division) (Scotland); HC/E/UKs 194: "In the present case, given the very young ages of all the children, the crucial issue was whether or not it had been established that the father by 5 October 1996 had consented to the children's becoming habitually resident in Germany"; Re J.S. (Private International Adoption), supra, note 64: "…always it seemed to me the outcome was that the term 'habitual residence of a child' envisages a state of affairs based not only on physical presence but with what one might call a mental element on the part of the parent or here the institution having legal responsibility".

• [81] Thus, in W. and B. v. H. (Child Abduction: Surrogacy) [2002] 1 FLR 1008, [18/02/2002; High Court (England); First Instance] HC/E/UKe 470, Hedley J. said, referring to B. v. H. (Habitual Residence: Wardship) [2002] 1 FLR 388, in which Charles J. held that the habitual residence of a child at birth was that of its parents: "If Charles J. is asserting as a matter of law that a baby takes the habitual residence of his parents then that is to confuse domicile with habitual residence and I would have respectfully to disagree. If what he asserts is a proposition of fact, then, by definition, it cannot be good for all cases. Each one must stand alone". In that case of a surrogate mother resident in England, the Court refused to consider that children born in England who had never set foot in California had their habitual residence in California simply because their biological father lived there and he had some rights regarding them.

• [82] Supra, note 62.

• [83] See also Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) [05/08/2003; United States Court of Appeals for the Eighth Circuit; Appellate Court] HC/E/USf 530. In that case, the Court applied this rule considering that the couple had an intention to settle in Israel, and it was wrong to consider that the hesitations of one of the spouses eliminated the possibility of a "settled purpose: one spouse harbouring reluctance during a move does not eliminate the settled purpose from the children's perspective". Similarly, in Delvoye v. Lee, the Court considered that a child born in Belgium had no habitual residence there for the following reason: "The parties never jointly intended to make their permanent home in Belgium, and the birth of a baby during a short stay there to save on medical bills does not change the parties' "degree of settled purpose" regarding their child's habitual residence". Similarly, in Paz v. Paz, supra, note 75, the Court considered the reality of a child who had been moved several times between several countries and held that a nine-month stay in New Zealand, where she had been at school, did not establish habitual residence, which remained at her mother's place of residence. However, the Court also considered that the mother did not have the intention of making New Zealand the child's habitual residence and so there was no common intention to this effect, which also places this decision in this reconciling trend. See also Schroeder v. Vigil-Escalera Perez, 76 Ohio Misc. 2d 25, 664 N.E.2d 627 (Ohio Com. Pl. 1995) [09/11/1995; State of Ohio, Court of Common Pleas, Cuyahoga County, Domestic Relations (United States); First Instance] ref.: HC/E/USs 154.

• [84] 26 F. Supp. 2d 240 (D. Mass. 1998) [21/10/1998; United States District Court for the District of Massachusetts;] ref.: HC/E/USf 225 (reversed on another ground by Toren v. Toren, 191 F.3d 23 (1st Cir. 1999), INCADAT: HC/E/USf 584).

• [85] E.M. Clive, "The Concept of Habitual Residence", [1997] Juridical Review 137, 142.

• [86] [1990] 2 All E.R. 961, 965 (Eng. H.L.).

• [87] See to the same effect Al Habtoor v. Fotheringham, supra, note 61. Similarly, in In Re A. (Family Div., H.C.J. July 31, 1995, HC-E-Uke 38), the judge held that the family, who lived in England because the father, a soldier, had until then been assigned to that country for five years, had instantaneously lost that residence from the time he was transferred to Iceland, although the children had actually lived in Michigan for three months in transit before going to Iceland.

• [88] [1998] AC 750, [24/07/1997; House of Lords (England); HC/E/Uke 3].

• [89] [1990] 2 All E.R. 961, 965 (Eng. H.L.).

• [90] P. Rogerson, "Habitual Residence: The New Domicile?" supra, note 13. Thus, in Secretary for Justice v. D., [08/07/1994; District Court of New Zealand at Auckland; First Instance] HC/E/NZ 251, the Court considered that children who had been in Scotland for five months before their forced return to New Zealand organized by their mother had acquired habitual residence in Scotland, in view of the facts and in light of the fact that when their father took them to Scotland from New Zealand there was an agreement between the parents that the move to that country would be permanent.

• [91] 14 February 1995, [14/02/1995; District Court of New Zealand at Hamilton; First Instance] HC/E/NZ 250.

• [92] In C. v. T. [2001] NZFLR 1105 31/08/2001; Family Court at Taupo (New Zealand); First Instance] HC/E/NZ 413, similarly, the immediate change of habitual residence was recognized on account of an agreement to this effect between parents: "J.'s habitual residence changed immediately when he left Australia to reside with his father indefinitely".

• [93] Ø.L.K, 5. April 2002, 16. afdeling, B-409-02, HC/E/DK 520 [05/04/2002; Østre Landsret (High Court, Eastern Division, Denmark); Second Level]: a stay in Denmark lasting one year did not suffice to alter the residence of a child who had remained in England with an agreement between the parents to that effect. See also R. and R., 7 January 1999, Juvenile Court of Rome (Italy), Nr. 2450/98 E, [07/01/1999; Juvenile Court of Rome (Italy); First Instance], HC/E/IT 297; A. v. S., 27 June 1996, Venice Juvenile Court (Italy), [24/06/1996; Venice Juvenile Court (Italy); First Instance], HC/E/IT 300 (six months in Italy regarded as insufficient to alter former residence located in California); Public Attorney v. J.S., Case No. 778/2001, [25/09/2001; Tribunal Judicial de Santa Maria da Feira (Portugal); First Instance], HC/E/PT 410; 8Ob121/03g, Oberster Gerichtshof (Cour suprême d'Autriche), 30/10/2003, HC/E/AT 548 [30/10/2003; Oberster Gerichtshof (Supreme Court of Austria); Supreme Jurisdiction].

• [94] In the Danish case, Ø.L.K, 5. April 2002, 16 Afdeling, B-409-02, HC/E/DK 520.

• [95] Re H. (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294; [2000] 3 FCR 412 [INCADAT reference: HC/E/UKe 478]; Cameron v. Cameron 1996 SC 17, 1996 SLT 306, 1996 SCLR 25 [INCADAT reference: HC/E/UKs 71]; Moran v. Moran 1997 SLT 541 [INCADAT reference: HC/E/UKs 74].

• [96] Callaghan v. Thomas [2001] NZFLR 1105 [INCADAT reference: HC/E/NZ 413]; Morris v. Morris, supra, note 64; Mozes v. Mozes, supra, note 62.

• [97] In Re A. (Family Div., H.C.J. July 31, 1995, HC-E-Uke 38); in Armiliato v. Zaric-Armiliato, supra, note 70, the New York Court, in holding that a girl was not habitually resident in New York, but that this residence was in Genoa, said: "Whether the parties resided in the residence on a temporary or conditional basis is also significant. . . . While A. has traveled around the world and remained abroad for up to two months at a time, she continually returned to Genoa, Italy. Moreover, the purpose of A.'s travel generally was to accompany her father when he performed. Mr. A.'s operatic engagements were temporary and finite".

• [98] [2001] NZFLR 1105 [31/08/2001; Family Court at Taupo (New Zealand); First Instance] HC/E/NZ 413.

• [99] Re F. (A Minor) (Child Abduction) [1992] 1 FLR 548 [INCADAT: HC/E/UKe 40]; Cooper v. Casey (1995) FLC 92-575 [INCADAT: HC/E/AU 104].

• [100] Supra, note 81. See also D. v. D., [19/06/2001; First Division, Inner House of the Court of Session (Scotland); Appellate Court] HE-E-Uks 351, where the court appears to have implicitly admitted that a child could have no habitual residence for a time. See also Robertson v. Robertson, supra, note 78; Delvoye v. Lee, 329 F.3d 330 (3rd Cir. 2003) [INCADAT: HC/E/USf 529]; F. v. A., supra, note 47.

• [101] See, for example, Morris v. Morris, supra, note 64.

• [102] In the Matter of V., H.C.J. Fam. Div. 28 June 1995, HE-E-Uke 45; Re A. (Abduction: Habitual Residence) [1998] 1 FLR 497 [13/08/1997; High Court (England); First Instance] HC/E/UKe 176): "It is of course not in doubt that a person, including a child, may have a habitual residence in two different countries at different times of the year. . . . Thus the fact that the child may have been habitually resident in England before being taken to Greece and may have been going to be habitually resident in England after return from Greece would not of itself prevent his being habitually resident in Greece during the intervening period".

• [103] E.M. Clive, "The Concept of Habitual Residence", [1997] Juridical Review 137, note 2; Explanatory Report on Convention, October 9, 1996, P. Lagarde, p. 552 at No. 40.

• [104] Further, this new Convention modernizes the former Convention on the Protection of Children: on October 30, 2003 the Supreme Court of Austria held (8Ob121/03g, Oberster Gerichtshof (Austrian Supreme Court), HC/E/AT 548 [30/10/2003; Oberster Gerichtshof (Supreme Court of Austria—Supreme Jurisdiction]) that the concept of habitual residence in the 1980 Hague Convention is interpreted in the same way as in the [old] Hague Convention on the Protection of Children.

• [105] Explanatory Report, pp. 554, n. 44 and 556, n. 47.

• [106] Idem, p. 552 at n. 41.

• [107] Idem, p. 552 at n. 41.

• [108] It should be noted that in Quebec law child protection measures depend in theory not on the law of habitual residence but on that of domicile, which is not always located in the same place as residence, according to a certain interpretation given by the Court of Appeal to article 80 C.C.Q. (which we have criticized). In any case, in Quebec law protection measures often depend nevertheless on the lex fori, as in the Convention, but not always, since the competent court is that of the child's domicile with regard to custody (art. 3142 C.C.Q.) or the domicile of one of the persons concerned (art. 3141 C.C.Q., applicable alternatively in parental authority). Further, as in the Convention, special provisions cover the jurisdiction of the court of the lex fori in cases of emergency or to protect the minor or the latter's property (arts. 3138 and 3140 regarding jurisdiction and 3084 and 3085 C.C.Q. in the event of conflict of laws).

• [109] [1996] 2 S.C.R. 108.

• [110] Supra, note 14.

• [111] Supra, note 43.

• [112] See also Droit de la famille — 3713 (D.M.D. c. E.V.), supra, note 14; C. v. T. [2001] NZFLR 1105 [31/08/2001; Family Court at Taupo (New Zealand); First Instance] HC/E/NZ 413; In Re A. (Family Div., H.C.J. 31 July 1995, HC-E-Uke 38); Armiliato v. Zaric-Armiliato, supra, note 70.

• [113] Droit de la famille — 2454, supra, note 15.

• [114] W. v. O., 14 June 1995,14/06/1995; Argentine Supreme Court of Justice, HC/E/AR 362; R. and R., 7 January 1999, Juvenile Court of Rome (Italy), Nr. 2450/98 E, 07/01/1999, HC/E/IT 297; J. v. J., supra, note 46; C. v. S. (Minor),supra note 43; F. v. A., supra, note 47.

• [115] [2004] J.Q. n. 13967 (S.C.).

• [116] H. v. H., [1995] 12 FRNZ 498, pp. 1 and 2, cited at n. 48 of the Quebec judgment.

• [117] See, thus, Cass Civ 1ère 16/12/1992 (Nº de pourvoi: 91-13119), 16/12/1992; Cour de cassation, première chambre civile (France); HC/E/FR 518, J. v. J., supra, note 46.

• [118] Thus, in Re S. (Minors) (Abduction: Wrongful Retention) [1994] Fam 70, [1994] 1 FLR 82, [1994] Fam Law 70, [14/07/1993; High Court (England); First Instance] HE-E-Uke 117, the Court said: "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". See also D. v. D., June 8, 1990, Court of Session, HC-E-UKs 73.

• [119] Cass Civ 1ère 16/12/1992 (Nº de pourvoi: 91-13119), 16/12/1992; (France) HC/E/FR 518; Ø.L.K, 5. April 2002, 16. afdeling, B-409-02, HC/E/DK 520, 05/04/2002; Østre Landsret (High Court, Eastern Division, Denmark; J. v. J., supra, note 46; C. v. C., 25 May 1992, Tel Aviv District Court (Israel) HC/E/IL 357.

• [120] Re A. (Abduction: Habitual Residence) [1998] 1 FLR 497, [13/08/1997; High Court (England); First Instance] HC/E/UKe 176.

• [121] Supra, note 58.

• [122] The governing principle for ascertaining the elements of habitual residence is contained in the speech of Lord Scarman in R. v. Barnet London Borough Council ex parte Shah [1983] 2 A.C. 309, when he says, at page 314: '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.' &

• [123] Byrn v. Mackin, supra, note 11.

• [124] See summary in: Droit de la famille québécois, vol. 1, "La demande en divorce", par. 32-210, p. 3085.

• [125] Supra, note 28.

• [126] Droit de la famille — 2454, supra, note 15.

• [127] Supra, note 62.

• [128] Ibid., cited by the Superior Court at No. 30.

• [129] R. v. Barnet, London Borough Council ex parte Shaw, supra note 57, at 344, cited by the Superior Court at No. 32.

• [130] [2002] R.D.F. 874 (S.C.) at No. 33.

• [131] Ibid. at No. 36.

• [132] Supra, note 15.

• [133] See also Rees v. Convergia, Convergia Networks Inc., S.C. Montréal 500-17-017494-033, 2004-03-11, AZ‑50225541, J.E. 2004-975, D.T.E. 2004T-500, at n. 27 (jurisdiction of the court in a case regarding a employment contract).

• [134] [1983] 2 A.C. 309, 314; [1983] 1 All E.R. 234.

• [135] F. v. A., supra, note 47.

• [136] Secretary for Justice v. P., ex parte C. [1995] NZFLR 827, [07/07/1995; District Court of New Zealand at Henderson HC-E-NZ 67; K.H v. S.H., Wellington, AP n. 359/94 (H. Court of N.Z.), 12 April 1995, HC-E-NZ30.

• [137] Supra, note 70.

• [138] See as to this Brennan v. Cibault, supra, note 71.

• [139] Supra, note 74.

• [140] He stated at paragraph 70: [TRANSLATION] "I am not sure that this statement accurately reflects the state of U.S. law on the point: it appears to be an isolated decision which writers have also sought to distinguish, by comparing it to the leading case of Fredrich v. Friedrich".

• [141] [2004] J.Q. n. 7484 (July 2, 2004, S.C. Montréal). To the same effect, in Droit de la famille — 3451, Chamberland J.A. reversed a decision by a lower court in circumstances quite similar to those in Re J. (Abduction of a child who had lived for a year in Ontario by the mother to take him back to Quebec), on the ground that: [TRANSLATION] "in my opinion, therefore, the trial judge wrongly 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 that his parents leased in Toronto. All these objective and concrete factors, independent of the intentions of either parent, should have led the trial judge to conclude that the habitual residence of W. was in Toronto, where his father is still living".

• [142] Supra, note 13.

• [143] Supra, note 74.

• [144] Including in Brennan v. Cibault, supra, note 71.

• [145] Supreme Administrative Court (Regeringsrätten) (Sweden), decision of 12 September 2001, Case number 7624‑2000, 12/09/2001; Supreme Administrative Court of Sweden (Regeringsrätten), HC/E/SE 447.

• [146] See also Droit de la famille  3713 (D.M.D. c. E.V.), supra, note 14. 

• [147] C. v. S., supra, note 43; In Re B. (minors: abduction) (No 2) [1993] 1 FLR 993; Robertson v. Robertson, supra, note 79.

• [148] Supra, note 63.

• [149] Re J. (A Minor) (Abduction: Custody Rights); C. v. S. (Minor), supra, note 43; Al Habtoor v. Fotheringham, supra, note 61.

• [150] Re J. (A Minor) (Abduction: Custody Rights); C. v. S. (Minor), supra, note 43; see in Quebec: Droit de la Famille — 3713 (D.M.D. c. E.V.), supra, note 14.

• [151] See W. and B. v. H. (Child Abduction: Surrogacy), supra, note 81; Delvoye v. Lee, supra, note 100; F. v. A., supra, note 47.

• [152] Morris v. Morris, supra, note 64.

• [153] In the Matter of V.,H.C.J. Fam. Div. June 28, 1995, HE-E-Uke 45; Re A. (Abduction: Habitual Residence) [1998] 1 FLR 497, 13/08/1997; High Court (England); First Instance, HC/E/UKe 176).

• [154] Supra, note 14.

• [155] Friedrich v. Friedrich, supra, note 74.

• [156] Falls v. Downie, 871 F.Supp. 100 (D. Mass. 1994) [28/12/1994; United States District Court for the District of Massachusetts; First Instance] HC-E-USf 141.

• [157] With respect to ordinary residence, the search period in the cases extends from 1987 to 2004.

• [158] EYB 1991-76025, S.C. Montréal, n. 500-04-000387-910, September 27, 1991.

• [159] REJB 1996-29278, C.A. Quebec, September 16, 1996, n. 200-09-000158-946.

• [160] See, for example, the Act respecting Public Inquiry Commissions, R.S.Q. 1977, c. C-37, s. 10: "Any person on whom any summons has been served, in person or by leaving a copy thereof at his usual residence, who fails to appear before the commissioners, at the time and place specified therein, maybe proceeded against by the commissioners in the same manner as if he had failed to obey any subpoena or any process lawfully issued from a court of justice". See also section 7 of the Act respecting Automobile Insurance, R.S.Q. 1977, c. A-25: "Every victim resident in Quebec and his dependants are entitled to compensation under this title, whether the accident occurs in Quebec or outside Quebec. Subject to paragraph 1 of section 195, a person resident in Quebec is a person who lives in Quebec and is ordinarily in Quebec, and has the status of Canadian citizen, permanent resident or person having lawful permission to come into Quebec as a visitor".

• [161] "68. Subject to the provisions of this Chapter and the provisions of Book Ten of the Civil Code of Quebec, and notwithstanding any agreement to the contrary, a purely personal action may be instituted; (1) Before the court of the defendant's real domicile or, in the cases contemplated by article 83 of the Civil Code, before that of his elected domicile. If the defendant has no domicile in Quebec but resides or possesses property therein, he may be sued before the court of his ordinary residence, before the court of the place where such property is situated, or before the court of the place where the action is personally served upon him."

• [162] [1997] Juridical Review 137, 139, note 13.

• [163] AZ-95024060, [1995] R.D.F. 695.

• [164] See also Droit de la famille — 1657, EYB 1992-75060, S.C. Hull, n. 550-12-014189-921, Sept. 11, 1992, where the Court said: [TRANSLATION] "The [Divorce] Act refers to ordinary residence, namely the place where the couple habitually lived. . . he two spouses had their habitual family residence in Gatineau from June 1, 1990 onwards, and lived in a house purchased jointly where they intended to reside permanently". See to the same effect N.K. v. R.V., [2004] R.D.F. 572 (S.C.), AZ-50254383, J.E. 2004-1360, a divorce case in which the two expressions are used indifferently. See also Droit de la famille — 3148, [2000] Q.J. n. 3224 (S.C.); M.(O) c. K. (REJB, 2000-19964, S.C., Montréal, August 2 2000, no. 500-12-239317-971), where the Court, in concluding that neither party to a divorce action had an "ordinary residence" in Quebec, said: "There was no permanency whatsoever attached to the living arrangements of the couple while they resided in the Province of Quebec". We noted above that the idea of permanence is also fundamental to the concept of habitual residence.

• [165] S.G. v. R., AZ-00026276; B.E. 2000BE-573; [2000] R.L. 183. In the same case, Dalphond J. (as he then was) said: [TRANSLATION] "The fact that the father may intend to return to Montreal as soon as he can find employment comparable to what he currently has in Hanover in no way alters the fact that at present he is habitually resident in New Hampshire".

• [166] Supra, note 11.

• [167] Nevertheless, reference may also be made to Droit de la famille — 2617, supra, note 1, where Sénécal J. (as he then was) said in obiter: [TRANSLATION] "The concept of habitual residence has already been interpreted under the Divorce Act, in which the phrase has existed since 1968 (it was retained in the 1986 Act). It has been held that a person's habitual residence is the place where the person regularly, normally or ordinarily lives(Hardy v. Hardy, (1969) 2 O.R. 875 (H.C.). The Alberta Court of Appeal expressed the view in Adderson v. Adderson, (1987) 7 R.F.L. (3d) 185, 36 D.L.R. (4th) 631 (C.A. Alb.), that the phrase 'habitual residence' is a mid-point between domicile and residence and refers to the nature of the residence. The duration of time spent there is a factor to be considered, as is intention".

• [168] Hardy v. Hardy, 2 R.F.L.50, (1969) 2 O.R. 875, 7 D.L.R. (3d) 307 (H.C.); Marsellus v. Marsellus, (1970) 2 R.F.L. 53, 75, 13 D.L.R. (3d) 383 (B.C.S.C.); Anema v. Anema (1977), 27 R.F.L. 156 (Man. Q.B.).

• [169] Thus, in Massé v. Sykora, S.C. Montréal, no. 500-12-087337-790, July 6, 1979, C. Benoit J. explained at p. 11: [TRANSLATION] "Temporary absence from the 'home' which was established and is maintained in a province suggests continued residence in that province".

• [170] Supra, note 1. See also Droit de la famille — 2279, AZ-95024060, [1995] R.D.F. 695.

• [171] P. Rogerson, "Habitual Residence: the New Domicile?" supra, note 13.

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