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 II: Habitual Residence in Quebec Law and Under the 1980 and 1996 Hague Conventions (cont'd)

Question 6: Is there any difference in interpretation in Quebec case law between the French version ("résidence habituelle") and English version ("ordinary residence") of sections 3, 4 and 5 of the Divorce Act?

The decisions rendered in Quebec do not interpret the French and English versions of sections 3, 4 and 5 of the Divorce Act differently.

In Droit de la famille  — 2279,[163] dealing with section 3 of the Divorce Act, the Superior Court states:

[TRANSLATION]
In his text titled Droit de la famille québécoise [Jean-Pierre Senécal, Droit de la famille québécoise. vol. 1, Farnham, C.C.H./FM, updated, No. 32-2310] Jean-Pierre Senécal, now a judge of the Superior Court, considers that a person's habitual residence is the place where the person regularly, normally or ordinarily lives. He refers to the Supreme Court of Canada income tax judgment, Thompson v. MNR, [1946] S.C.R. 209, at 231, where the Court held:

A reference to the dictionary and judicial comments upon the meaning of these terms indicates that one is "ordinary resident" in the place where in the settled routine of his life he regularly, normally or customarily lives.

From this it follows that the "ordinary" residence is the place where a person regularly, normally or ordinarily lives. The "ordinary residence" is the place where in the settled routine of his life someone regularly, normally or customarily lives. The two phrases are seen as identical. Accordingly, the concept of "ordinary residence", defined as the place where a person habitually lives, corresponds exactly to the definition of "habitual residence".[164]

Quebec jurisprudence considers that it is [TRANSLATION]  "essentially a question of fact" (S.G. v. R.S., at no. 19), which in theory appears to exclude analysis of the parties' intention.[165] See, however, Byrn v. Mackin:[166]

In the year proceeding [sic] the divorce petition, his stay in Montreal had none of the badges of being 'ordinarily resident' here. He was here for work only and with no indication that he intended to stay permanently. 

This case is exceptional: it does not represent the usual position of Quebec courts.[167]

Incidentally, it may be noted that Quebec courts do not habitually use the test current in common law cases, according to which "résidence habituelle", "ordinary residence", is the place where a "real home" has been established.[168] However, this test is not opposed to the concept expressed in Quebec cases and is sometimes used.[169]


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