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

1. What does the term "residence" mean?

Part of the problem in assessing "residence" in the common law provinces is that (i) it usually is modified by terms such as "ordinary", "actual", or "habitual" each of which alters the basic meaning of the word "residence", (ii) the meaning of the word may be affected by whether it is employed as a choice of law or jurisdiction concept, and (iii) the term may be used alone or as part of a grouping of significant contacts approach.

The common law courts developed the concept of "residence", "and ordinary residence" in children's law and spousal support. Parliament incorporated "ordinary residence" as a general jurisdiction factor in the Divorce Act 1968 and added the concept of "actual residence" but only as a basis for jurisdiction to grant a divorce. Because of the problems associated with "actual residence" as a jurisdictional consideration in the Divorce Act[14], Parliament abandoned the concept in the Divorce Act 1985 and used instead "ordinary residence" or more precisely where a person was "ordinarily resident". Although the French language version of the Act replaces "ordinarily resident" with "habitually resident", the dichotomy does not seem to have affected the way the term is interpreted in the common law provinces or Quebec[15].

A person resides in that province, state, or country about which his or her life is centred. In family law cases the reference was more often to "ordinary residence" than residence simpliciter. In the common law provinces, the courts initially adopted the definition of ordinary residence that had developed under the Income Tax Act[16]. "Residence" in contrast to "presence" involves a settled and enduring connection between a person and a place[17]. Residence is treated primarily as a factual conclusion and not, like domicile, an idea of law[18].

"Residence", unlike "domicile" is not an exclusive concept so that a person may be resident in more than one jurisdiction at the same time[19]. At its simplest level, residence implies that a person is living in a jurisdiction: eating, sleeping, and working in that place. A person may "reside" in a place even if he or she is not physically present there from time to time[20]. The term "residence" excludes tourists and casual visitors to a place[21] although the legality or compulsory nature of a person's presence in a place should not affect where he or she is resident as a matter of law.

In Re Koo[22] , Reid J. held that a person with an established home of his own in a place does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of student. Although the decision dealt with whether a person had fulfilled the residence requirement of the Citizenship Act[23], Reid J. reviewed many of the same cases that are raised in family law cases and reached the conclusion that the test whether a person is resident in a place is whether that place is where the person regularly, normally or customarily lives-the place where he or she has centralized his existence. While Reid J. purported to be determining the person's residence, his analysis seems more in keeping with the test for "ordinary residences" and highlights the blurred lines between the various forms of residence in the common law provinces.

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