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)

7. What if any are the differences between the concepts "habitual residence" and "ordinary residence"?

This is not as easy a task as it was in the past. Historically, the main differences between "ordinary" and "habitual" residence seemed to be that:

  1. habitual residence was a more enduring connection between a person and a place;[124];

  2. habitual residence was an exclusive concept whereas a person could have more than one ordinary residence[125];

  3. most courts and commentators considered habitual residence to fall somewhere between domicile and ordinary residence. It was a more enduring connection than ordinary residence but somewhat less than domicile.

    As indicated, the English courts and commentators appear to accept that the concepts of ordinary residence and habitual residence mean the same thing at the present time. It is difficult to tell if ordinary residence has moved into habitual residence or vice versa. More likely if this change has occurred, both concepts have moved slightly from their original positioning.

    If asked, most lawyers and judges in Canadian common law provinces probably would maintain that there is a difference between habitual residence and ordinary residence, placing both between domicile and residence with habitual residence closer to domicile as more intention driven than ordinary residence. The main practical differences between habitual residence and domicile being that it takes longer physical presence to acquire a domicile of choice in a place than habitual residence but less intention. While a person must intend to remain in a place "forever" to establish domicile only an intention to remain indefinitely is need to establish habitual residence. At a different level of abstraction, domicile is more legally driven and has far more cumbersome rules associated with domicile of origin and dependency in particular.

    However, it is quite arguable that there is little or no difference between the two concepts at the present time [126].Both are factual in nature. Neither requires proof of a long term future intention. Most importantly, recent case law seems to accept that in an exceptional case a person may have neither an ordinary or habitual residence and/or more than one of either [127].With some hesitation, it is suggested we have reached the point where the terms are interchangeable-both are something less than domicile [128] but beyond mere presence. Certainly in children's law, the common law courts interpret both in a similar manner. A child's habitual or ordinary residence depends on the pattern of family life prior to family breakdown and neither parent can unilaterally change the child's habitual/ordinary residence. However, cases that seem to suggest a person can establish ordinary residence as soon as he or she arrives in a place if there is a sufficiently strong intention to reside there indefinitely seem difficult to reconcile with traditional notions of habitual residence.

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