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 3: Differences of interpretation of the concept of "habitual residence" in Quebec civil law and under the 1980 and 1996 Hague Conventions

We will methodically consider (1)the general rules of interpretation of habitual residence in concepts under the Conventions (3.A), and then (2) specific rules developed by the courts on this concept when it originates in the framework of the Hague Convention (3.B).

3.A General rules of interpretation of habitual residence

In V.W. c. D.S.,[109] the Supreme Court of Canada described the relationship between Quebec law and conventional law as follows at paragraph 28:

Since the situation in Quebec can be distinguished from that in Manitoba in that the sole purpose of the Act is to give effect to the [1980] Convention even though it does not adopt the integral wording thereof, two independent systems cannot coexist in Quebec. On the contrary, the interdependence of the Convention and the Act is recognized both in the preamble to the Act, which states that "Quebec subscribes to the principles and rules set forth in the Convention", and in s. 1 thereof, which states the common objects of the Act and Convention. . . In my view, the interdependence of the Convention and the Act accordingly suggests an interpretation of ss. 3 and 4 of the Act that gives full effect to the object of the Convention. . .

Similarly, in Droit de la famille  — 2454, Chamberland J.A. stated the following regarding habitual residence in the context of an international abduction, at paragraphs 49 and 50:

[TRANSLATION]
Accordingly, it is in the light of the objects and philosophy of that Convention that we should analyse the relevant provisions of the Act and apply them to the circumstances of the case at bar . . . As the Convention is an international treaty, we must be careful not to interpret the concepts contained therein in such a way that it would depart from the interpretation generally recognized by the international community, lest obviously we diminish its effectiveness at the expense, in the long or short term, of those whom it seeks to protect, children. International solidarity on child protection requires a relatively uniform interpretation of the Convention throughout the world.

Accordingly, this approach advocates the interpretation of Quebec law concepts in light of the objectives of the Convention rather than in accordance with the purely civil law conceptions of the Civil Code, where there is disagreement.

In the same case, Droit de la famille  — 2454, Chamberland J.A. referred to several British and American cases which have interpreted the Convention. He himself attempted to determine the value of those cases in terms of [TRANSLATION] "conclusive precedents in the interpretation of the Convention and Act".

Accordingly, in Quebec law, in order to meet the objectives of the Convention, the interpretation of the concept of habitual residence should follow the international trend, rather than adopt an independent interpretation, so as to achieve relative uniformity. From this standpoint certain Quebec judges, at least at the Court of Appeal level, have tried to determine how foreign courts have interpreted this concept. Accordingly, they do not hesitate to cite foreign precedents, even if in practice local precedents are generally used. However, as Droit de la famille  — 2454 is one of the leading cases in this area, the foreign cases cited in it have also become references in Quebec law, as interpreted by our judges, who still exercise critical judgment.

3.B Specific rules on habitual residence

Proposition 1—Habitual residence should be interpreted in accordance with the ordinary

Most of the propositions below (except proposition 8) are clearly affirmed in Quebec law and in the available precedents from other countries. Their interpretation remains quite consistent (propositions 1, 2, 3.1, 5.1, 6 and 7.1). Some, however, subject to quite divergent positions, are not always viewed in the same way in Quebec and elsewhere (propositions 3.2, 4, 5.2, 5.3 and 7.2).

This rule was adopted in Quebec by the Court of Appeal in Droit de la famille  — 3713 (D.M.D. c. E.V.)[110] and in common law countries where Re J. (A Minor) (Abduction: Custody Rights); C. v. S. (Minor)[111] is regarded as a leading case.

In Quebec, the ordinary meaning of the phrase "habitual residence" is as follows: the place where a person generally, ordinarily, permanently resides. The few definitions we have found given in other countries suggest that there is no difference in this regard between the Quebec view and that of other countries.

However, in all systems, it is recognized that this ordinary meaning rule is insufficient; especially when the persons in question travel a great deal or the child's life has been too short at the time of the case to identify what is "habitual". It has therefore been necessary to add other rules to deal with these difficult cases.

Proposition 2—Continuity of habitual residence

To be "habitual", a residence should not be occasional and should have certain continuity. From a logical standpoint, this rule should simply be seen as a component of the definition of "habitual residence" (which should be "permanent"). However, precedents in both Quebec and other countries sometimes appear to perceive it as an independent rule, dealing with the frequency or quantitative aspect of the connection. In any case, we do not see any difference between the Quebec condition and the one applied in other countries requiring it.[112]

Proposition 3—Residence is a question of fact, dependant on the circumstances
Proposition 3.1—Residence is a question of fact

This rule is recognized in Quebec[113] and in other systems.[114] All systems recognize (in L.Y.P. v. M.E.,[115] the Quebec Superior Court relied in 2004 on a New Zealand decision[116]) that it does not depend directly on a person's legal situation, especially from an immigration standpoint.

Proposition 3.2—Residence depends on circumstances

There is disagreement regarding the circumstances used to determine residence. It is recognized that a Court may "examine the situation in more general terms, going beyond the purely factual situation" in the various systems, and that the duration of a work contract can be included in this. An agreement between the parents, especially regarding joint custody, is also part of the circumstances making such a determination possible. There is a consensus that such an agreement can be considered as a juridical fact.[117]

However, there is disagreement as to whether this kind of juridical fact can directly determine a child's habitual residence. The report titled "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)" objects in paragraph 16 to habitual residence depending on an agreement between parents which does not correspond to the factual situation. However, some passages in decisions from common law countries could be taken to mean the contrary. It is suggested that disagreement between parents, a lack of a tacit or express contract, cannot alter the situation.[118] Quebec law certainly cannot be included with those who would recognize the parents' intention as having such a role. Unless one is referring to general findings according to which it is a fact that by necessity, in retrospect, an agreement between parents results indirectly in altering the child's habitual residence, while a disagreement between them cannot (which is certainly incorrect in Quebec law).

Proposition 4—Role of parents' intention

There are quite significant disagreements in the case law regarding to the role that should be given to parents' intention, to the extent that Quebec precedents have been directly criticized in the decision regarded as most influential in U.S. case law.

Proposition 4.1—Exceptional subjective approach: settled purpose of parents belongs to circumstances of fact

This judicial trend appears in civil law countries, or others,[119] as well as in common law countries.[120]

In Quebec, ambiguously, the Court of Appeal appears to recognize this moderate position according to which in exceptional cases this subjective aspect can be taken into account qualitatively as a circumstance in difficult cases where the length of the stay in the new location is quantitatively difficult to establish.

In the Court of Appeal, in Droit de la famille  — 2454, the mother's intention to stay in California for only three years was not relevant in determining the children's habitual residence, and at paragraph 64 Chamberland J.A. said:

[TRANSLATION]
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, as 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.

However, paradoxically, in Droit de la famille  — 2454 Chamberland J.A. cited the English decision In Re Bates,[121] explaining that the Court in that case suggested the test we have referred to earlier, dealing with the "settled purpose".[122] Appearing to apply it, the judge determined that in the circumstances the couple in question had in fact "settled" in California. It can be argued that in this analysis the purpose, the aim, of the stay is taken into account to determine not whether the residence exists, but whether it is habitual, and sufficiently continuous to constitute a settled purpose.

Further, according to Chamberland J.A. in obiter, at paragraph 64:

[TRANSLATION]
The situation could be different if only one of the parents had custody: his or her intentions would then be of greater importance (for example, in Re J. (A minor), 87 L. Soc'y Gazette, Oct. 3, 1990).

Thus, the Court of Appeal went so far as to recognize that the intention of a single custodial parent could be taken into account in deciding the children's place of residence.

Some decisions by lower courts have clearly moved in the direction of exceptional use of parents' intent. In Byrn v. Mackin,[123] the Superior Court in 1983 held that a person residing in Vancouver, where he had a house in which his wife and children lived, had retained his residence there despite spending long periods of time in Montreal to work there and living there in an apartment owned by his employer, because he had not expressed an intention of staying in Montreal permanently.[124]

More recently there was C.E.S. v. E.V.,[125] a child abduction case decided in 2002. Unlike what the Court of Appeal held in Droit de la famille  — 2454 [126] according to which, so as not to assimilate habitual residence, a factual concept, with that of the domicile of one of the parents, only the children's reality should be taken into account and the parents' wishes and intentions would not be relevant factors since the aspect of intent related to domicile would be applied, the Superior Court found that [TRANSLATION] "this viewpoint does appear to have been generally recognized by the international legal community". In this regard it cited Moses v. Mozes.[127] The U.S. Court went on to consider whether it is relevant to look at the parents' intention or whether instead the child's intention should be considered, in a case where intentions count, for example where it is necessary to determine whether absence from a place was to be temporary.[128] The Superior Court also referred to a decision by the House of Lords[129] and the passage written by Lord Scarman already cited by Chamberland J.A. in Droit de la famille  — 2454.

The Superior Court then concluded:[130]

[TRANSLATION]
It appears from the foregoing cases that interpretation of the concept of habitual residence cannot be done in the abstract. We should avoid adopting a reductionist approach whose effect would be to confuse the concept of "habitual residence" with that of real or effective residence. It is all a matter of circumstances. This is precisely why those drafting the Convention did not define the concept of habitual residence, thereby giving the courts more latitude to develop applicable rules. The approach is objective, which does not mean that the subjective approach is not appropriate in some cases or that the intention of the parents is never relevant.

Applying this subjective approach to the case before it, for an order to return the children to North Carolina, the Court determined as follows:[131]

[TRANSLATION] The Court has no hesitation in finding, based on the particular circumstances of this case, that there was a settled purpose within the meaning of international precedents. . . The parties' settled purpose was to reside in the United States, because that is where the applicant earned his living and wanted his children to grow up.

Accordingly, the Superior Court admitted, retreating somewhat from the Court of Appeal's statements in Droit de la famille — 2454,[132] but relying on a U.S. decision and on a decision by the House of Lords, that the two parents' settled purpose to reside in the United States should be taken into account in determining the children's habitual residence.[133]

However, the Quebec courts have clearly refused to take the parents' intention into account as a general condition of change of residence.

Proposition 4.2—Subjective approach: a change of residence requires the evidence of a settled intention to abandon the former residence, PLUS the evidence of a settled purpose to reside at the new location

The applicable quotation in favour of a subjective approach comes from R. v. Barnet London Borough Council ex parte Shaw,[134] 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.

This test, a fundamental principle of English law, is also the key position in U.S. law.[135]

However, in Mozes v. Mozes, the leading U.S. authority in this area, Kozinski J. held that the question of duration should not be overlooked:

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

Bear in mind that this subjective approach has not received such favourable support in New Zealand.[136] Further, in Armiliato v. Zaric-Armiliato,[137] Pauley J. noted that the entire reasoning based on the settled purpose of parents (often?) requires reference to facts objectively showing such a purpose in order to prove it. We therefore go back to a largely objective reasoning.[138]

By contrast, it may be noted that in Droit de la famille — 2454, the Court of Appeal held that the mother's intention to stay in California for only three years was not relevant in determining the habitual residence of the children, and Chamberland J.A. said, at paragraph 64 (emphasis added):

[TRANSLATION]
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, and 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.

Further, to this effect, the judge again cited the U.S. case of Friedrich v. Friedrich,[139] as a guide to follow in determining habitual residence:

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.

Chamberland J.A. was not prepared to take this route.[140] See also to this effect A.I. v. R.M.C.[141] at no. 21:

[TRANSLATION] It should be noted that the parents' intention will have no significance in determining the habitual residence of B., as this is essentially a question of fact.

This position in Quebec is completely contrary to Kozinski J.'s position in Mozes v. Mozes, who expressly describes it as "unsound", and even "superficial". In his view, it is adequate for easy and obvious cases. He correctly points out that in such cases all the circumstances are not taken into account. He does not agree that the objective ties developed by the child could suffice in the absence of "settled parental intent", which accordingly becomes a condition of change of habitual residence.

Kozinski J. considered that this approach, focusing on the child's reality, would be unreliable, especially as the children may readily adapt to a new environment. He considered that the task of the Court is not to determine whether a child is happy where he is, but to prevent parents from unilaterally altering the status quo of the child's situation. He also tried to respond to the argument made by Chamberland J.A., where the parents' intentions differ. As we have seen, he tried to classify situations in several categories, depending on whether or not there is a settled purpose to change the habitual residence.

In short, this is the type of reasoning which Chamberland J.A. would like to avoid, because it involves broad discretion and unpredictability. This approach could be criticized for being as unreliable as the Quebec judge's approach, adding that the very purpose of the Convention is not to punish the person abducting the child but to ensure that the abduction does not harm the child's development, which is usually the case, but which also justifies exceptional integration defences.

Finally, one may believe that this is a philosophical concept recognizing that time can be appreciated subjectively, and so relatively. As P. Rogerson acutely observes:[142]

. . . the conception of what is an "appreciable time" varies depending upon the state of mind of the person in question. Where that person has definitively and obviously made up their mind to live in a particular place for the foreseeable future, the "appreciable time" need only be very short, even a matter of a few days.

If this analysis is accepted, the conflict in approaches comes down to whether a subjective (or relative) concept of time will be recognized. The traditional view only accepts an objective concept of time, which would be the same for everyone, and would not take into account the future intention of the person in question (i.e. the parent).

In any case, the difference with the common law approach, as advocated by Lord Scarman, is that the settled intention or settled purpose to move to a new place is not in Quebec law a condition required for changing habitual residence. However, in cases where the time spent in the new place is short, this aspect of intention may from time to time be applied in difficult cases.

Proposition 5—The child's reality or automatic dependence on parents

There are three approaches to this question in the case law of countries that have interpreted the concept of habitual residence under the Convention. The Quebec courts have clearly used the first approach and rejected the other two.

Proposition 5.1—The child's habitual residence is determined by considering the reality of the child, not the parents (child-centred model)

This approach is accepted in particular in the United States. The leading case on the point is Friedrich v. Friedrich,[143] where it states at page 1401:

To determine the habitual residence, the court must focus on the child, not the parents, and examine past experience, not future intentions.

This case has been cited with approval several times.[144] A Swedish case can also be cited to the same effect.[145] In Quebec, in Droit de la famille — 2454 (Y.D.), Chamberland J.A. stated the following:[146]

[TRANSLATION] 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, and 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.

Proposition 5.2—Automatic dependence on parents and consideration of their intention (dependency model)

The leading case on this point is Mozes v. Mozes, in which the U.S. Ninth Circuit Federal Court of Appeals (per Kozinski J.) held as follows, entirely rejecting the approach taken in Quebec:

. . . 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.

To the contrary, according to this approach which assigns most of the weight to the settled purpose, only the intention of the parents can be taken into account, in view of the age of the child.[147]

Proposition 5.3—The settled purpose must be from the child's perspective

This intermediate and more moderate approach is probably the one gaining the most support in the United States.

The leading case is Feder v. Evans-Feder[148], which states the following:

[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 view of the fact that the parents' intention continues to play an essential part in this approach, we can submit that it also does not correspond to the approach currently taken in Quebec law.

Proposition 6— Required period of time to lose and acquire the habitual residence
Proposition 6.1— Required period of time to lose the habitual residence

The cases from common law countries which have interpreted the concept of habitual residence under the Convention recognize that such residence can be lost immediately, in a single day.[149] This is understandable in a system which gives a central role to intention and which requires that there be proof of intention not to return to the former country. Such an intention can materialize immediately.

In Quebec law, the courts have not ruled on this position. This can be explained inasmuch as in Quebec the possibility of multiple habitual residences is recognized: the analysis concentrates on the acquisition of a new residence without considering whether the former one has been lost. However, given the implicit role of intention in the potential for instant loss, and given that this brings residence closer to domicile, it may be that this position would not be readily accepted in Quebec law. At the same time, it is acknowledged that the acquisition of a new residence can take place quite quickly, without requiring any minimum period, which would tend to move in the direction favourable to acceptance of such a position.

Proposition 6.2— Required period of time to acquire a new residence must be "significant" or "appreciable"

This rule is recognized in Quebec law and in common law.[150] In both systems, it is recognized that everything depends on the circumstances establishing that the child has integrated in the new place and there is no fixed or predetermined period of time.

Proposition 7— Absence or multiplicity of habitual residence(s)
Proposition 7.1— Absence of habitual residence

Quebec law certainly recognizes the possibility that there is no habitual residence, as stated in article 78 C.C.Q. That is also now recognized in the case law of the common law countries.[151]

Proposition 7.2— Multiple habitual residences

Quebec law recognizes the possibility of multiple habitual residences, as provided in article 77 C.C.Q. However, in order to comply with the objectives of the Convention to protect children, most decisions in common law countries dispute this,[152] and prefer to recognize the possibility of a number of consecutive habitual residences, in accordance with the child's period of residence with one parent or the other under an agreement between them.[153]

Proposition 8—Real and active connection between the child and his habitual residence

This condition, whose exact origin is unknown, is clearly stated independently by the Quebec Court of Appeal in Droit de la famille  — 3713 (D.M.D. v. E.V.).[154]

It does not appear expressly in the case law of other countries that have interpreted the habitual residence concept within the meaning of the 1980 Convention. Nevertheless, it exists implicitly in foreign cases requiring that the focus of the analysis be on the child's reality, not on that of the parents or their intention[155] or condemning the artificiality of a claim by one parent.[156] Accordingly, there is clearly no difference on this point between Quebec case law and the majority of foreign cases.

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