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 7: Is there a difference in Quebec law between "résidence habituelle" and "résidence ordinaire" or "ordinary residence"?

There is no difference in Quebec law between the concepts of "résidence habituelle" and "résidence ordinaire" or between these concepts and that of ordinary residence. Thus, in Droit de la famille  — 2617[170] the Superior Court defined the concept as follows:

[TRANSLATION]
It has been held that a person's habitual residence is the place where he regularly, normally or ordinarily lives [citing Hardy v. Hardy, [1969] 2 O.R. 875 (H.C.)] "Habitual residence" requires more lasting ties than simple residence. In tax matters, the Supreme Court said in Thomson v. M.N.R., [1946] S.C.R. 209, at 224 and 231:

The expression "ordinarily resident" carries a restricted signification, and although the first impression seems to be that of preponderance in time, the decisions on the English Act reject that view. It is held to mean residence in the course of the customary mode of life of the person concerned, and it is contrasted with special or occasional or casual residence . . . . The general mode of life is, therefore, relevant to a question of its application. A reference to the dictionary and judicial comments upon the meaning of these terms indicates that one is "ordinarily resident" in the place where in the settled routine of his life he regularly, normally or customarily lives.

It cannot be said that, in Quebec law:

No particular minimum time has been required to establish ordinary residence in this country [England] so the "appreciable time" requirement is the only possible distinguishing feature between ordinary and habitual residence.[171]

It should be noted that in Quebec law, according to the great majority of cases, neither habitual residence nor ordinary residence includes a condition of intention to remain, permanently or not, in a particular place.

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