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«I. GENERAL Domicile is the core of the Canadian system of private international law. For instance, the domicile will determine in many instances ...»

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J. G. Castel*


Domicile is the core of the Canadian system of private international law.

For instance, the domicile will determine in many instances which legal system

governs the personal relations of an individual whose rights are at issue in

the courts of a particular province.' It connects this individual with some system

of law. Many other important questions are also governed by the law of domicile.

In the common-law provinces the law of domicile has been greatly influenced by English law. Primacy is given to the domicile of origin. In the province of Quebec, the law of domicile has been codified in articles 79 to 89

of the Civil Code. Article 79states:

The domicile of a person, for all civil purpose, is at the place where he has his principal establishment.

Although this seems to be a purely technical legal concept, an


relationship to a ;place rather than a physical localization as the common-law cases hold, there is no basic difference between that approach and the words of Lord Westbury in Bell v. Kennedy -2 Domicile, therefore, is an idea of law. It is the relation which the law creates between an individual and a particular locality or country.

In fact, the Quebec notion of domicile has been held to be the same as that prevailing in the rest of Canada. Domicile is thought of as the place of principal establishment, the permanent home. 4 This is eiter, the place in which an individual's habitation is voluntarily fixed without any intention on his *Associate Professor, Faculty of Law, McGill University.

'C.C. 6.

2[1868], L.R. 1 Sc. Div. 307, at p. 320.

See the approval of these words by.Ritchie C. J. in Wadsworth v. McCord (1868), 12 S.C.R. 466, affd. 14 A.C. 631.

Trahan v. Vezina, [1947] 2 W.W.R. 563; [19471 3 D.L.R. 769 (Que.); Crosby v.

Thomson (1926), 53 N.B.R. 135; [1926] 4 D.L.R. 56 (C.A.); the Civil Code also states in article 63 that "for the purpose of marriage, domicile is established by a residence of six months in the same place", but this has been construed as referring only to residence which requires more than physical presence, and not to domicile in the international sense; Wadsworth v. McCord, Ibid. It must be noted that there may be cases where a person is domiciled in a country although he does not have a permanent home in it. Dicey, Conflict of Laws 1958 7th Ed. rule 2 p. 85.

McGILL LAW JOURNAL [Vol. 5 part of removing there-from, or the place assigned to him by law. 5 Except for federal purposes, there is no such thing as a Dominion or Canadian domicile.

It has been stated however that it is impossible to acquire a Canadian domicile for the purpose of divorce, although this is a matter within the legislative authority of the Dominion Parliament. 6 Domicile in one of the provinces is necessary.

The words "Canadian domicile" and "place of domicile" are found in the Canadian Citizenship Act, 7. and in the Immigration Act,8 where domicile is defined for the purpose of immigration and citizenship only. Thus it has been held that the words "Canadian domicile" refer to residence and not international domicile.9 Therefore in some circumstances it would appear that a person could have a domicile in Canada under these Acts although domiciled according to private international law rules in another country.

Canadian courts, have adopted the English and American view that every person must have a domicile'0 and only one at a particular time," but may have more than one residence. 12 It is possible, however, that a person ln general see: Johnson, The Conflict of Laws, with special reference to the law of the Province of Quebec, Vol I (1933), p. 91 et seq.; and Du domicile en France et dans la Province de Quebec (1934), 13 R. du D. 71; and Domicile in its Legal Aspects (1929), 7 Can. Bar Rev. 356; Gerin-Lajoie, Du domicile et de" la juridiction des Tribunaux (1922); Jett6, Du domicile (1924), 2 R. du D. 210; Lafontaine, Le domicile (1891), La Themis 289; Williams, Domicil (1923), 1 Can. Bar Rev. 243;

Lilkoff, Le domicile (1954), 14 R. du B. 361; Mackay, Domicile matrimonial (1941), 1 R. du B. 83.

GAtty.-Gen. for Alberta v. Cook, [1926] A.C. 444; [1926] 1 W.W.R. 742, [1926] 2 D.L.R. 702; Marriaggi v. Marriaggi, [1923] 3 W.W.R. 849; [1923] 4 D.L.R. 463, at p. 466 (Man. K.B.).

7R.S.C., 1952, c. 33, as am. 1952-53, c. 23, 1953-4, c. 34, 1956, c. 6. ss. 2 (bb) and 2 (mm). See also in Re Lipstein, [1923] 2 D.L.R. 1055; 56 N.S.R. 292.

R.S.C., 1952, c. 325 s. 4 (1).

ONaturalization does not of itself change the domicile of the propositus although lie would need to have a Canadian domicile to obtain his citizenship. In re Immigration Act; in re Leong Ba Chai (1952), 7 W.W.R. (N.S.) 321; 103 C.C.C. 350; [1952] 4 D.L.R. 715, aff'd. 105 C.C.C. 136, [1953] 2 D.L.R. 766 (B.C.C.A.) per O'Halloran J.A. at p. 768 (D.L.R.) per Robertson J.A. at p. 773 aff'd. by [1954] S.C.R. 10. Cf.

In re The Immigration Act and Santa Singh, [1920] 2 W.W.R. 999 where the notion of acquisition and loss of Canadian domicile is tested by the rules applying to international domicile; see also In re the Immigration Act; In re Carmichaeland Carmichael, [1942] 2 W.W.R. 84;.57 B.C.R. 316; 77 C.C.C. 281; [1942] 3 D.L.R. 519 and In re Innigration Act; in re Dedar Singh Bains, [1954] 13 W.W.R. 90 construing-s. 2 (j) of the Canadian Citizenship Act, R.S.C., 1952, c. 33 now repealed by 1952-53 c. 23.

"°Wadsworth v. McCord, supra footnote 3.

"Kay v. Simard (1857), 1 L.C.J. 167 (Que.); Tennant v. The City of St. John (1932), 5 M.P.R., 107, at p. 110 (N.B.) ; Cartright v. Hinds (1883), 3 O.R. 384, at p.

395; American Restatement of the Law of Conflict of Laws (1934) with amendments and additions ss 11, 25, hereafter cited as Restatement.

12 Crosby v. Thomson, supra footnote 4. Tennant v. The City of St. John. Ibid. The question of domicile will be determined by the law of the forum.


No. 3] be domiciled abroad for provincial purposes, yet domiciled in Canada for federal purposes. This is not a denial of the unity of domicile but is due to the division of legislative powers in Canada. Although the notion of domicile is closely connected with that of habitual residence it must be distinguished from it since one is essentially a question of fact while domicile also requires a mental condition, the intention.'


It is the law in all the provinces that every person acquires at birth a domicile of origin which is the place in which the father of the child has his domicile at the time of the birth, or that of the mother if the father is dead of if the child is illegitimate. 14 In the case of a foundling it is the place where the child was found. 15 The domicile of origin cannot be changed. It may, however, be replaced during minority by a domicile of dependence by the act of the person upon whom he is -dependent. Otherwise it will prevail until the individual once sui juris has acquired a domicile of choice. 6 The domicile of origin differs from a domicile of choice mainly in that the courts have held that its character is more enduring and its hold is less easily shaken off. 17 Consequently the onus of disproving that domicile is heavier than disproving the domciile of choice.' 8 This is to be regretted. Canada is a country of immigration and it would' seem erroneous to entertain the view that the ties connecting a person with his native country are particularly strong. Immigrants arriving' in this country intend to sever these ties and yet they may not, for a certain time, have selected a particular place in Canada where they intend to stay sine animo reventendi. They may move from province to province in quest of a suitable place to live. Why force them to retain their domicile of origin during that period? Of course, this may be the reason why a Canadian domicile has been established fof federal purposes although it is very limited in its effects.

The emphasis on the domicile of origin does not appear in the Quebec Civil Code' 9 and is not really great in practice in the other provinces.

13VWadsworth v. McCord, supra footnote 2.; Emperor of Russia v. Proskouriakoff (1908), 8 W.L.R. 461, at p. 470; 18 Man. R. 56 affirming 7 W.L.R. 766 and 8 W.L.R. 10, at p. 13, appeal quashed 42 S.C.R. 226.

' 4 Restatement, s. 14.

15 Note that the Restatement, s. 14 (3) says that in the event the domicile of origin cannot be shown, it would be proper to choose as a substitute the place to which a person can earliest be traced.

16Magurn v. Magurn (1883), 3 0.R. 570, at p. 579; aff'd. 11 O.A.R. 178; Laurie v.

Baird, [1946] O.W.N. 600; [1946] 4 D.L.R. 53; Trottier v. Rajotte, [1940] S.C.R.

203, [1940] 1 D.L.R. 433.

3-7n re Murray Estate, [1921] 3 W.W.R. 874; 31 Man R. 362. (K.B.) Ibid. aid McGuiganr v. McGuigan, [1954] O.R. 318; [1954] 3 D.L.R. 127, at p.' 129 aff'd. [1955] O.W.N. 861; [1955] 1 D.L.R. 92.

'1C.C. 80.



In Crosby v. Thomson it was stated in the New Brunswick Court of Appeal :20 Domicile of choice is the relation which the law creates between an individual and a particular locality or country. It is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place with the intention of continuing to reside there for an unlimited time.

In order that a person sui juris may acquire a domicile of choice different from that or origin, there must be a change of residence and the fixed intention of making the new residence a permanent home.21 The physical fact of residence must be accompanied by the mental fact of intention, the animus sempee nanendi.

Article 80 C.C. states:

Change of domicile is effected by an actual residence in another place, coupled with 2the intention of the person to make it the seat of his principal establishment.

Residence is purely a factual concept, which requires only habitual physical presence,2 4 although it does not need to be long in point of time. It is easy to prove. Once a domicile of choice has been established, it can be retained without concurrence of residence and intention. Thus you may leave your residence in the province of Quebec and retain your domicile there if you intend to return.

Intention is difficult to ascertain. One must have a present intention to reside for an indefinite period within the province. 25 The residence must not be merely for a special or temporary purpose.2 6 There must be a "fixed and settled purpose" to make a particular place one's permanent home,2 7 to have a residence, general and indefinite in its future contemplation. In other words oSupra, footnote 4 per Grimmer J., at p. 70 (D.L.R.).

Restatement, s. 15.

Magurn v. Magurn, supra, footnote 16; Wadsworth v. McCord, supra, footnote 3;

Adams v. Adams (1909), 11 W.L.R. 358, 14 B.C.R. 301; Fairchild v. McGillivray (1910), 16 W.L.R. 562, 4 Sask. L.R. 237. As to the notion of animus semper manendi, see Guon v. Gunn and Savage (1956), 18 W.W.R. 85, (1956), 2 D.L.R. (2d.) 351 (Sask.

C.A.); Douglas v. Hodgins, [1957] O.W.N. 29, 7 D.L.R. (2d.) 57.

See also: Taylor v. Taylor, [1930] S.C.R. 26, [1930] 1 D.L.R. 75; Poissanut v..Com d'Ecoles de St. Jacques le Mineur, [1957] S.C. 123.

House v. Robinson, [1942] 45 P.R. 114 (Que.) ; Baumifelder v. Secretary of State, [1927] Ex. C.R. 86, at p. 91 It is more than casual presence.

Restatement, ss. 19 and 20.

GWadsworth v. McCord, supra, footnote 3.

Williamson v. Williamson (1948), 22 M.P.R. 75, [1948] 3 D.L.R. 319 (N.S.) It does not mean that the present determination to make a place one's permanent home must be irrevocable.

No. 3] DOMICILE fixity is the basis of the Canadian concept of domicile. 28 A mere intention to leave one's domicile of origin and take up residence elsewhere without determination of any particular locality will not constitute the animus ntanendi.

In Quebec the Civil Code states in article 81 that:

The proof of such intention to make a place one's principal establishment results from the declaration of the person and from the circumstances of the case.

First of all, the onus of proof of change of domicile is on the party who seeks to show that the domicile of origin has been abandoned in favour of a domicile of choice. 30 Strong and unequivocal evidence must be adduced 3 1 as there is a presumption of law in favour of the continuance of the domicile of 6rigin.m2 While prolonged residence in a foreign country has sometimes been considered as prinma facie evidence of an intention to abandon that domicile this is not conclusive, but may be rebutted by facts tending to show that there was no such intention. The length of residence in another place is merely a circumstance insufficient by itself to establish proof of a change of domicile. 33 Other matters have also been taken into consideration such as contemporaneous declarations and the general circumstances of the case. 34 Thus the acquisition of an interest in a business together with long residence has been held to be good evidence of a change of domicile.3 5 Naturalization in Canada does not of itself necessarily involve such a change.3 6 On the other hand, the fact that a person did not cast - off his allegiance to the country of origin is not conclusive evidence that he did not 28Cf. Restatement ss. 12, 19, 20 (b).

Proof of residence and of an animus inanendi in the United States generally without reference to any particular state was held insufficient in Trottier v. Rajotte, supra footnote 16.

oColeinan v. Colenmn, [1919] 3 W.W.R. 490 (Alta.); Picco v. Pearson, [1954] Q.B. 67; Poirier v. Evrard, [1945] P.R. 209 (Que.), Re Haldorson Estate (1953), 9 W.W.R. (N.S.) 145 (Man.); Finnigan v. Finnigan (1950), 58 Man. R. 456; Levko v. Levko, [1947] O.W.N. 702; K. v. K., 17 M.P.R. 19, [1943] 2 D.L.R. 102 (N.S.C.A.);

Chatenay v. Chatenay, [1938] 1 W.W.R. 885, 53 B.C.R. 13, [1938] 3 D.L.R. 379;

Lamond v. Lamond and Tappin, [1948] 1 W.W.R. 1087 (Sask. K.B.).

Baker v. Baker, [1941] 2 W.W.R. 389, at p. 393, 49 Man. R. 163; [1941] 3 D.L.R.


McGuigan v. McGuigan, supra, footnote 18. Seifert v. Seifert, (1914) 32 O.L.R.

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