DOMICILE
J. G. Castel*
I. GENERAL
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 influ-
enced 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 abstract relation-
ship 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.5
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 prin-
cipal 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.
3See the approval of these words by .Ritchie C. J. in Wadsworth v. McCord (1868),
12 S.C.R. 466, affd. 14 A.C. 631.
4Trahan 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.
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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 domi-
cile 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 inter-
national domicile.9 Therefore in some circumstances it would appear that a
person could have a domicile in Canada under these Acts although domi-
ciled 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
5ln 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.
8R.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 inter-
national domicile; see also In re the Immigration Act; In re Carmichael and 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.
12Crosby 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.
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DOMICILE
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.’ 3
II. DOMICILE OF ORIGIN
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 indi-
vidual 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.)
18Ibid. 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.
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III. DOMICILE OF CHOICE
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
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 un-
limited time.
locality or country. It is a conclusion or
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 .22
Article 80 C.C. states:
2 3
Change of domicile is effected by an actual residence in another place, coupled
with the
intention of the person to make it the seat of his principal establish-
ment.
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 have a
residence, general and indefinite in its future contemplation. In other words
to make a particular place one’s permanent home,2 7
2 oSupra, footnote 4 per Grimmer J., at p. 70 (D.L.R.).
2 1Restatement, s. 15.
2 2 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.
2 3 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.
2 4House 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.
2 5 Restatement, ss. 19 and 20.
2 GWadsworth v. McCord, supra, footnote 3.
2 7 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.
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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.2
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 circum-
stance 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).
29Proof 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.
3oColeinan 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.).
31Baker v. Baker, [1941] 2 W.W.R. 389, at p. 393, 49 Man. R. 163; [1941] 3 D.L.R.
581.
32McGuigan v. McGuigan, supra, footnote 18. Seifert v. Seifert, (1914)
32 O.L.R.
433, 23 D.L.R. 440; Coleman v. Colenati, supra footnote 30. Mundell v. Mundell (1958),
65 Man. R. 314; Pagi v. Mercure (1929), 46 K.B. 459 (Que.).
33Nusselan v. Nozik, [1949] S.C. 431
34Gauvin v. Rancourt, [1953] R.L. 517 (C.A.)
(Que.).
(Que.) ; Wilson v. Frankfurt, [1957]
P.R. 111 (Que.); Costie v. Costie, [19471 O.W.N. 658, [1947] 3 D.L.R. 541, reversed
on the facts [1947] O.W.N. 746, [1947] 4 D.L.R. 472; Kalenczuk v. Kalenczuk, [1920]
2 W.W.R. 415, 13 Sask. L.R. 262, 52 D.L.R. 406 (C.A.).
35Rider v, Rider, [1925] 1 W.W.R. 1051, 19 Sask. L.R. 384, [1925] 3 D.L.R. 370
(C.A.).
3 61n re Immigration Act, in Re Leong Ba Chai, supra, footnote 9.
McGILL LAW JOURNAL
[Vol. 5
acquire a domicile in Canada.37 To suppose that for a change of domicile there
must be a change of national allegiance is to confound the political and the
civil status.38 In general, in order to determine a person’s intention at a given
time, one must regard not only his conduct and acts at that time, but also acts
and conduct after that time, assigning to such conduct and acts their relative and
proper weight and cogency.3 9 In the opinion of Kindersley V.C.,4
There is no act, no circumstance in a man’s life, however trivial it may be in
in trying to question whether
itself which ought to be left out of consideration
there was an intention to change the domicile.
Thus it is not by naked assertions but by deeds and acts that a domicile is
established. 41 The purchase of furniture, the renting of an apartment, the
acceptance of a job, may be taken into consideration. 42 Although a person
whose domicile is in question may himself give evidence of his past intention,
this type of evidence will not necessarily be conclusive, especially if the course
of his conduct conflicted with the expression of his intention. 43 On the other
hand Mr. Justice Mignault in Taylor v. Taylor4 4 stated that “the declarations
must be contemporaneous ones and not those which a party may make as a
witness at the trial.” This however does not seem to represent the state of the
law in Canada. 45
In general, declarations of intention, even under oath, are examined by
considering the person to whom, the purpose for which and the circumstances
in which, they are made, and they must further be fortified and carried into
effect by conduct and action consistent with the declared intention. 46 They are
of no avail when conflicting or indefinite or when evidently made for the purpose
of creating evidence in favour of the declarant after he has become appreciative
of the consequences of a change of domicile. 47 In White v. White, Williams J.
37Chatenay v. Chatenay, supra footnote 30, per Manson J. at pp. 390-391.
38Scifcrt v. Seifert, supra, footnote 32, at p. 444.
39Henderson v. Muncey, [1943] 3 W.W.R. 242, 59 B.C.R. 312, [1943] 4 D.L.R. 758
affirming [1943] 2 W.W.R. 120, 59 B.C.R. 57, [1943] 3 D.L.R. 515
40Drevon v. Drevon (1864), 34 L.J. (N.S.) Ch. 129, at p. 133.
41 Wadsworth v. McCord, supra, footnote 3, Biggar v. Biggar, 42 B.C.R. 239, [1930]
(C.A.).
2 D.L.R. 940; K. v. K., supra, footnote 30, per Doull J. at p. 27 (M.P.R.).
42Mills v. Morrison, [1947] P.R. 282 (Que.).
43Boyle v. Boyle, [1925] 1 W.W.R. 829 (Man.); Barton v. Barton, [1940] 2 W.W.R.
494, [1940] 3 D.L.R. 211, affirming [1940] 1 W.W.R. 371, [1940] 2 D.L.R. 465 (Sask.)
(C.A.) The fact that the declaration takes the form of an ‘affidavit does not change
the rule. Walcott v. Walcott (1914), 48 N:S.R. 322, 23 D.L.R. 261 (C.A.).
44Supra, footnote 23. See also Roussel v. Duinais, [1958] S.C. 448 (Que.).
45See Trottier v. Rajotte supra, Footnote 16; Vezina v. Trahan, [1947] 3 D.L.R.
769 [1947] Y.B. 670 (Que.); White v. White [1950] 4 D.L.R. 474, at p. 489.
4GWhite v. White [1950] 2 W.W.R. 687, [1950] 4 D.L.R. 474 aff’d. [19511 3 W.W.R.
[1952] 1 D.L.R. 133; Brewster v. Brewster, [1945] 3
(N.S.) 352, 59 Man. R. 181,
D.L.R. 541, 61 B.C.R. 448 (C.A.).
47Crosby v. Thomson, supra footnote 4.
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DOMICILE
also stated that the courts will take into consideration the motives in arriving
at the intention. 48 A mere declaration embodied in a marriage certificate that a
person is domiciled in a certain place is not by itself sufficient evidence of an
intention to acquire a new domicile of choice.49 The courts may also look at
the place where a person pays his taxes, 50 where he lives most often, where he
enjoys the advantages attached to domicile. 5′ Voting in a municipal election is
no evidence of domicile where the franchise depends upon the ownership of
property.5 2
A question has been raised as to whether there should be a difference in the
weight of evidence to be adduced when a change of domicile takes place from
one province to another, instead of from one foreign country to another. Should
not the burden of proof in a party alleging a change of domicile from one
province to another be less heavy? English courts are inclined to hold that
every presumption is against the conclusion that an individual would give up
his home in England for another. One could argue that less evidence should
be sufficient to show a change of domicile from one province of Canada to another
than would be necessary to establish a change of domicile from one country to
another. There is authority in Canada to support that view. Thus in British
Columbia in Walsh v. Herman53 Hunter C. J. of the Supreme Court stated:
The case is not one where the party is alleged to have acquired a foreign domi-
cile, but where he had merely shifted from one British jurisdiction to another
under the same general government; and the circumstances which would warrant
the inference of a change of domicile within British Dominions only, would not
necessarily warrant the inference of. a change to foreign domicile.
while in Fairchild v. McGillivray,5 4 Judge Lamont of the Supreme Court of
Saskatchewan said:
In my opinion, the circumstances which would warrant the inference of a change
of residence from one province to another in Canada could not necessarily war-
rant the inference of a change to foreign domicile.
In Morrisy v. Morrisy,5 5 a decision of the Supreme Court of Nova Scotia,
Graham J. made the following remark:
I think that the length of residence which is required to establish domicile in a
foreign country is not necessary to establish a new domicile when the change of
4 8 The motive with which a person acquires a new home does not determine
the
question of the establishment of a domicile of choice but is important to show the
intention. Supra, footnote 46. [1950] 4 D.L.R. 474 at p. 495 contra per Dysant J. [1951]
3 W.W.R. (N.S.) 352 at p. 362. See also Adams v. Adams supra, footnote 22.
4 9Belanger v. Carrier, [1954] Q.B. 125; Wadsworth v. McCord, supra, footnote 3.
5OMoore v. Hunt (1934), 38 P.R. 205
(Home divided by boundary line
(Que.)
deemed to be in Canada as municipal taxes were paid in Canada.).
5 1House v. Robinson, supra footnote 24.
5 2 1n re Murray Estate, [1921] 3 W.W.R. 874, 31 Man. R. 262.
53(1908); 7 W.L.R. 388 at p. 389, 13 B.C.R. 314, at p. 315.
5 4 Supra, footnote 22.
551948 unreported; see comment (1949), 27 Can. Bar Rev. 849.
McGILL LAW JOURNAL
[Vol. 5
residence is from one province of Canada to the adjoining province. It is, of
course, still the same question of fact but the probability of intention is more
easily raised and does not require so long residence to prove intention.
Finally in the Saskatchewan Court of Appeal this point of view was clearly
accepted.50 It has also been said that because the laws applied in each of the
common-law provinces are substantially the same, a lesser degree of proof should
suffice. “, This does not necessarily follow from the premises nor is it true that
the law is substantially the same in all the provinces. The real argument in
favour of a lighter burden of proof is that the old English notion of domicile
ought to be adapted to the Canadian scene as it has been in the United States.
Many Canadians move freely from one place to another to better their position.
Does this mean that they cannot change their domicile as easily? The new trend,
at least at the interprovincial level, clearly seems to favor residence rather
than intent.
The word “choose”
indicates that the act must be voluntary. The intent to
acquire a domicile of choice must not be vitiated by compulsion.50 Public
servants cannot be said to have changed their domicile unless there is evidence
that they had the intention of remaining where they were after relinquishing
office. Thus the Quebec Civil Code declares that:
A person appointed to fill a temporary or revocable office, retains his former
domicile, unless he manifests a contrary intention. 59
This does not mean that a person appointed for life acquires a domicile of choice
where he is appointed. Actually, even in the case of physical coercion, such as
prison, although the mere fact of imprisonment raises no inference of animus
manendi, there is no reason why a prisoner should not acquire a domicile of
choice in the place where he is imprisoned if he so wishes. 69 Again this is a
matter of intent.
Canadian courts have often been faced with the problem of determining
whether a member of the armed forces may have the necessary animus manendi
to acquire a domicile of choice in the place in which he is stationed as he may”
be ordered to move at any time. It has been held that although prima facie he
retains the domicile he had at the time of his enlistment,6′
this does not
SOSupra, footnote 22, reversing (1955), 16 W.W.R. 44, [1956] 1 D.L.R. (2d.) 360
and see comment (1956), 34 Can. Bar Rev. 210, 363.
57 Adamns v. Adams, supra footnote 22, at p. 306 (B.C.R.) ; see also White v. “White
[1952] 1 D.L.R. 133 dissenting opinion of Dysart J. A., at p. 136.
5 0Similarily, an involuntary residence of a national in his domicile of origin does
not mean an abandonment of his domicile or residence of choice unless that as a fact
is established. Baumfelder v. Secretary of State of Canada, supra, footnote 24.
50C.C. 82.
0 Contra, Restatement, s. 21 (b).
“1Patterson v, Patterson, (1956) 3 D.L.R. 2nd 266 (N.S.) ; McKeever v. McKeever
(1956), 17 W.W.R. 393 (Alta.); Wilton v. Wilton, [1946] O.R. 117, [1946] 2 D.L.R.
397; Cornish v. Cornish, [1943] O.W.N. 341, [1943] 3 D.L.R. 525; Hillcoat-v. Hillcoat,
[1958] O.W.N. 677.
No. 3]
DOMICILE
necessarily mean that he cannot acquire a domicile of choice elsewhere while in
the armed forces.6 2 There may exist, with a residence which has begun and
is continued under military service and orders, facts and circumnstances which
establish a residence voluntary in character and chosen by the soldier although
it is a residence in a -place in which he is stationed by the order of his military
superiors. 63 It results that in all matters apart from his duties, a soldier who is
sui juris may acquire a domicile of choice, 64 if there is evidence of voluntary
choosing.6 5 All that can be said is that compulsory residence does not reflect
the existence of intention, to make the place of residence the permanent home.
Intent will have to be established by evidence of facts, and by events which are
not merely incidental to the compulsory residence and which clearly show an
intention to settle in the place of that residence and to remain settled there even
if the residence should cease to be compulsory. In the case of an employee liable
to be transferred from one place to another by order of his employer the same
problem of precarious residence arises although here he can always leave the
employer’s service if he should not wish to comply with his orders. 66 In all cases
it is a question of fact.
The domicile of choice will continue until a new domicile of choice is acquired.
However some Canadian courts have held that a domicile of choice continues
until it is lost by leaving it with the animus non revertendi although a new
domicile has not been acquired aninzo and facto. To abandon the domicile of
choice there must be the fact of abandonment of residence and the intent to
leave it permanently. 67 It is not lost by prolonged absence. Also, a person who
is deported from the country in which he has his domicile does not thereby
abandon it.68
Since an individual cannot be at any time without a domicile, and, on the
other hand, it has been held that he may abandon his domicile of choice without
acquiring a new one, the domicile of origin revives, 9 without special intention
62McBeth v. McBeth, [1954] 1 D.L.R. 590 (B.C.); Joyce v. Joyce, [1943] 3 W.W.R.
283 (Sask. K.B.) Note that in Meise v. Meise and Fiddler [1947] 1 W.W.R. 949
(Sask. K.B.) it was stated that a soldier cannot change his domicile while he is in
the army.
63See Wilton v. Wilton, supra, footnote 61 where Wilson J. relied on Sellars v. Sellars,
[1942] S.C. 206, at p. 212.
64 Wilkinson v. Wilkinson, [1949] 1 W.W.R. 249 (Sask.).
65McBeth v. McBeth, supra footnote 62; Hillcoat v. Hillcoat, supra, footnote 62.
66See Lowry v. Lowry, [1936] 2 W.W.R. 217 (Sask.).
67Breen v. Breen, [1930] 1 W.W.R. 30, 38 Man. R. 409, [1930] 1 D.L.R. 1006, (C.A.)
reversing [1929] 2 W.W.R. 345, [1949] 4 D.L.R. 649 (C.A.); Jones v. Kline [1938]
3 W.W.R. 65, [1938] 4 D.L.R. 391 (Alta.); Re Foo et al. (1925), 56 O.L.R. 669, 44
C.C.C. 17; [1925] 2 D.L.R. 1131 (C.A.).
68Lauritson v. Lauritson (1932), 41 O.W.N. 274.
69Bonbright v. Bonbright (1901), 1 O.L.R. 629, affd. 2 O.L.R. 249; Nelson v. Nelson,
[1930] 1 W.W.R. 189, 24 Sask. L.R. 250, [1930] 3 D.L.R. 522 (C.A.).
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to revert to that domicile.70 The idea is that the domicile of origin being a
creature of law cannot be destroyed by the act of the propositus but is held in
abeyance during the continuance of the domicile of choice. This view is in
direct opposition to the American doctrine which more logically holds that the
previous domicile continues to exist until a new one has been acquired.71 There
is no such emphasis on the domicile of origin in Quebec and the domicile of
choice will remain until a new one is acquired. 72 The domicile of origin should
not have the character of allegiance.
In Nelson v. Nelson,73 the question was raised whether the rule should be
applied where a person immigrated to the United States from Denmark with
his parents who acquired a domicile of choice in the state of Colorado. After
becoming an American citizen he left his domicile for Alberta, not- intending
to return to this particular state but always intending to return to the United
States. The court refused to adopt the view that upon leaving Colorado he was
domiciled in Denmark, his domicile of origin. The court said:
in a case
The principle of reversion to the domicil of origin seems to have been laid down
by the English Courts at an early date before the right of the subject to change
his allegiance to another country was recognised and as it was to fix a doinicil
in law where there appeared to be none and in fact and thus to make the rule
absolute that at every moment in his life a man has a domicil .the domicil of
origin was the most convenient and logical one to designate. I have some doubt,
like this where the
however, as to whether the rule now applies
domicil of choice was only his choice in a legal sense he having immigrated with
his parents as an infant and having after attaining his majority elected to become
a national of the country of his domicil. I am inclined to think that the rule now
would be modified to the extent of reverting to the country of which the party
is a national. But whatever the correct rule may be I do not think he reverted
to Denmark in any event because his domicil in Colorado involved a domicil in the
United States of America, and I take it it would be impossible for him to shed it
for one purpose and retain it for another. A person has only one domicil at any one
time. It is a place. It may be important from a state point of view or a national
but it cannot be subdivided or duplicated… It seems to me that he remained
domiciled in the United States and before he could revert to his Denmark domicil
of origin it would be necessary for him not only to have abandoned Colorado as
his domicil but the United States as well, which he did do.
… Because a person
leaves a country temporarily intending to return but not
necessarily to the same spot he does not thereby abandon his domicil, it still will
remain at the place where it was when he left until he resumes it again in the
country and if he takes up his residence on his return at a different location he
will be then domiciled at a different place but will nevertheless have continued
to be domiciled- all the while in the country.
On his return the change in the location of his domicil within the country will be
instantaneous. I, therefore, hold that the plaintiff by reason of his temporary
residence in Canada did not lose his domicil in the United States but that it
70Breen v. Breen, supra footnote 67; .ones v. Kline, supra footnote 67; Baiton v.
Barton, supra, footnote 43; Bonbright v. Bonbright, Ibid. In re Rattenburg Estate and
Testators Family Maintenance Act, [1936] 2 W.W.R. 554; 51 B.C.R. 321.
71Re Jones Estate (1921), 182 N.W. 227; Restatement, s. 23.
72C.C. 80; Brochu v. Bissonnette (1898),
13 S.C. 271 (Que.); see also Baker v.
Baker, [1941] 2 W.W.R. 389, at p: 393, Per Robson J. 49 Man. R. 163, 3 D.L.R. 581
reversing [1941] 2 W.W.R. 48 (C.A.).
73(1925] 3 D.L.R. 22.
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DOMICILE
remained in the location in that country from which he came which was the
State of Colorado.
The rule that the domicile of origin revives when the domicile of choice is
abandoned and no new domicile of choice has been established is open to
criticism especially in federal countries which rely heavily on immigration.74
It is to be hoped that the removal of this rule which has now been advocated
in England will be seriously considered in Canada. The -best view would seem
to be the subject of domicile of origin to rules similar to those governing the
domicile of choice, and decide that no domicile of any type can be lost without
the acquisition of a new one.
IV. DOMICILE OF DEPENDENCY OR BY OPERATION OF LAW
A ,person who has no capacity to acquire a domicile of choice has a domicile
by operation of law.75
A. MARmED WOMEN
In the province of Quebec, a married woman, not separate from bed and
board, has no other domicile than that of her husband.7 6 Her domicile changes
with that of her husband. In the common-law provinces, while the marriage
subsists the domicile of a married woman is also that of her husband77 though
he deserts her and acquires a new domicile in another province or foreign
country.78 In other words a married woman cannot establish a separate domicile
from that of her husband.
In 1926, the Judicial Committee of the Privy Council in an appeal from
Alberta decided that a married woman, even though she has obtained a decree
of judicial separation from her husband, cannot acquire a domicile of choice
separate from him so as to enable a court other than that of her husband’
domicile to dissolve her marriage.79 This attitude was contrary to some earlier
Canadian decisions which had held that a married woman deserted by her
husband may acquire a new domicile at least for the purposes of divorce80 or
may retain her domicile at the time of the desertion although the husband has
74Note that some authorities have limited the revival doctrine to cases where a
the person has not
person dies in itinere to his domicile of origin, others where
acquired citizenship in the domicile of .choice.
75Restatement, s. 26.
76C.C. 83.
7 7Nelsol; z Nelson, supra footnote 69;. Breen v. Breen, supra footnote 67; Atty.
Gen. for Alberta v. Cook, supra footnote 6; R. v. Brinkley (1907), 14 O.L.R. 434, 12
C.C.C. 454 (C.A.).
78Harris v. Harris, [1930] 1 W.W.R. 173, 24 Sask. L.R. 234, [1930] 4 D.L.R. 736,
affirming; [1929] 2 D.L.R. 546 (C.A.) ; Re Carmichael, supra, footnote 9; Marriaggi”
v. Marriagg’i, supra, footnote 6.
79Atty. Gen. for Alberta v. Cook, supra, footnote 6.
80Chaisson v. Chaisson (1920), 53 D.L.R. 360 (N.S.).
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established himself elsewhere. 8 ‘ Thus in Stevens v. Fisk,s2 a decision of the
Supreme Court of Canada in an appeal from Quebec, it was held that for the
purpose of divorce the wronged wife has capacity to adopt a separate domicile
in that case New York — permitted
if the law which governed her marriage –
the acquisition of such a domicile. The parties were married in New York while
domiciled there. After, they moved to Montreal and without first obtaining a
decree of separation from bed and board the wife returned to New York,
acquired a bona fide residence there, and sued for divorce. In view of the
decision of the Privy Council one may wonder whether such a view could be
maintained today in the common-law provinces. It is also contrary to the law
of the Province of Quebec, where a married woman may acquire a separate
domicile only once a decree of separation from bed and board has been obtained.
The hardship caused by the decision of the Privy Council prompted Parliament,
in 1930, to enact the Divorce Jurisdiction Act8 3 which gives the deserted wife
the right, in certain circumstances, to sue for divorce, in the province in
which she has been deserted, although her husband has acquired a domicile
elsewhere if, at the time of the desertion, he was domiciled in the provincq
where the action is brought.8 4 Upon termination of the marriage the wife keeps
her husband’s domicile until she acquires a new one.85 The American rule
which allows a wife living apart from her husband to acquire a separate
domicile, 6 is much more practical, as it takes into consideration the new
capacity of married women. The abandonment of the old common-law rule
would certainly have the favorable effect of doing away with Stevens v. Fisk,
Atty.-Gen. for Alberta v. Cook and also the anomaly of the Jurisdiction Act.
The removal of the imposition of a legal domicile in the case of married women
would also be in harmony with the notion of domicile of choice based on:
intent to make a place one’s permanent home, since she is not required by
8lPayn v. Payn. [1924] 3 W.W.R. 111, [1924] 3 D.L.R. 1006 (Alta.).
82(1885), 8 L.N. 42, at p. 53, Cameron S. Ct. Cases 392, reversing (1883), 6 L.N.
329, 27 L.C.J. 228 which reversed (1882), 5 L.N. 79 (Que.).
83R.S.C., 1952, c. 84.
84U.S., see Goodrich, Conflict of Laws, (3d.ed.)
s. 36; The American courts have
allowed a wife with a cause of divorce to retain the common domicile at the time
that cause was given although the husband removed his domicile to another place.
She has also been allowed to establish a separate domicile for divorce whenever she
chose. Some courts went even further by holding that such a domicile was valid
not only for divorce jurisdiction but for all purposes: Williamson v. Osenton (1913),
232 U.S. 619. Other courts have also held .that a wife can establish a domicile sep’arate
from her husband when she lived apart from him, without being guilty of desertion
under the law of the state which was the common domicile at the time of separation,
not requiring that she had a cause for divorce. The Restatement and some courts even
go further since, irrespective of desertion a wife living apart from her husband can
have a separate domicile (s. 28).
85Restatement, s. 29.
8GSupra, footnote 84.
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DOMICILE
law to live in her husband’s home. It may, however, for reasons of public
policy, be better to quality the rule in Canada and restrict it to the case where
the wife is not guilty of desertion, according to the law of the domicile of
the spouses at the time of separation, which was the rule found in the 1934
draft of the American Restatement of Conflict f Laws.
B. MINORS – INFANTS
It is obvious that the domicile of a minor or infant is not always his domicile
of origin. In the province of Quebec his domicile is -that of -his father and
mother or that of his tutor.8 7 A similar rule prevails at common law88 except
that an orphan retains the domicile of the father or mother, while in Quebec
he acquires that of the tutor.8 9 When a female minor marries she acquires
her husband’s domicile. In the common-law provinces
the father cannot
emancipate his child nor is the child emancipated by marriage, although in
the province of Quebec marriage emancipates minors and consequently a male
minor who marries may acquire a domicile of choice.90 The Quebec rule is
closer to the American one since in some of the states of the United States a
father may authorize the children to leave and acquire their own permanent
home and, in case of marriage, a minor is emancipated by operation of law.
The emancipated minor may then acquire a domicile of choice.91 During his
minority the legitimate child shares the change of domicile of the father, even
though -his custody has been given to the mother, yet in Hannon vi. Eisler92
Coyne J. A. of the Manitoba Court of Appeal suggested that this would not
be the case when the father permanently loses custody. In the United States
on the other hand the child has the domicile of the parent to whom he has
been entrusted or with whom he lives.93 This is a more logical solution. During
his minority the child cannot establish a domicile different from that of the
father.9 4
After the father’s death the legitimate child retains his last domicile, which
is also that of’the mother until she acquires a new one.9 5 If after the father’s
death the mother remarries and goes to live at her second husband’s domicile
and takes her children with her, they acquire the stepfather’s domicile. In
87C.C. 83.
88Restatement, s. 30.
89C.C. 83. Cf. Ibid. ss. 37 and 39.
90C.C. 314.
91 Restatement, s. 31.
92[1955] 1 D.L.R. 183, at p. 189, 13 W.W.R. (N.S.) 565 (Man. C.A.).
93 Restatement, ss. 32. In Quebec it has been held that a minor is not domiciled with
the person to whom he has been informally entrusted: Poissant v. Comm. d’Ecoles de
St. Jacques le Mineur, supra, footnote 23.
94 Holland v. Fisher, [1951] K.B. 118 (Que.). Doyon v. Letourneau (1904), 10 R.
de J. 564 (Que.) at least until he marries. Note that in Costie v. Costie supra, footnote
34, it was stated that it was doubtful whether a child engaged in trade could acquire’
a domicile.
95C.C. 83.
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Quebec, if the child stays with the mother and a tutor is appointed to him over
the mother, there is a conflict of authorities as to whether he is domiciled with
the tutor or with the motherY8 Some authors contend that since it is at the
domicile that civil rights are exercised and that since the tutor exercises them,
the minor is domiciled with him. Others contend that the mother has the right
to fix the domicile as this is an attribute of the paternal authority which she
exercises. Of course where the mother is the tutor and remarries, the domicile
of the child is that of her second husband.
A natural or illegitimate child has the domicile of the mother.9 7 The adopted
child acquires the adopter’s domicile.98
C. LUNATICS
In the case of a person of the age of majority interdicted for insanity, his
domicile in Quebec is that of his curator. 9 This differs from the rule prevailing
in the other provinces, in which he retains the domicile he had before he became
a lunatic.
D. ‘SERVANTS
According to article 84 of the Quebec Civil Code, the domicile of persons
of age who serve or work continuously for others is at the residence of those
whom they serve or for whom they work if they reside in the same house. Their
principal establishment is the home of their masters. However, a married woman
employed retains the domicile of her husband, and the minor that of his parents.
The master must be a physical person and the servant capable of choosing a
domicile. No such rules are in effect in the common-law provinces.
V. DOMICILE OF CORPORATIONS
Section 21 (1) of the Dominion Companies Act
00 states “The company
shall at all times have a head office in the place within Canada where the head
office is to be situate in accordance with the letters patent or the provisions
of this Part [Companies with share Capital], which head office shall be the
domicile of the company in Canada; and the company may establish such other
OAccording to C.C. 83.
97Restatement, s. 34.
W~Ibid, s. 35. Johnson, the Quebec Adoption Act and Domicile, (1956), 16 R. du B. 5;
Kennedy, Adoption and the Conflict of Laws (1956), 34 Can. Bar Rev. 507.
09C.C. 83; when the husband is interdicted for insanity and his wife is appointed
curatrix, the wife may have a domicile of her own, but if a stranger is appointed curator
the domicile of the wife
like that of her husband is the domicile of the curator,
Johnson, op. cit., vol 1, p. 143. If the wife is interdicted for insanity and her husband
is curator there is no change of domicile, but if a stranger is appointed, the domicile
of the wife is that of the curator.
100R.S.C., 1952, c. 53. Also, Wegenast, The Law of Canadian Companies,
(1931)
p. 823.
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DOMICILE
offices and agencies elsewhere within or without Canada, as it deems expedient.”
Provincial Acts also contain provisions relating to the domicile or residence
of corporations. For instance, section 30 of the Quebec -Companies Act’101
provides that, “The companies shall, at all times, have an office in the place in
which its chief place of business is situate, which shall be the legal domicile of
the company… The Company may establish such other offices and agencies
elsewhere as it deems expedient.” In National Trust Co. Ltd. v. Ebro Irrigation
& Power Limited et al and National Trust Co. Ltd. v. Catalonian Land Co. Ltd.
et aP02, a case which involved foreign, dominion and provincial corporations, it
was stated that the domicile of a corporation is in the country in which it was
incorporated and clings to it throughout its existence while in John S. Darrell
& Co. v. The Ship American’0 3 the principal or chief place of business was
held to be its domidile irrespective of the place of incorporation. The courts
have also recognized that a foreign or domestic corporation may have more than
one residence.10 4
VI. CONCLUSION
The main characteristics of the Canadian law are the excessive importance
attached to the domicile of origin and the difficulties involved in the proof of
intention to change domicile. Too much weight is given to intention. It would
seem better to abandon the present concept of domicile and attach it to a material
fact such as habitual residence. For instance, the domicile of any physical person
could be where he has his principal residence, and, if it cannot be established,
where he exercises his principal professional activity, until changed. This would
remove the difficulty of proving the intention. 10 5 On the other hand the draft
English Code of Domicile still resorts to intent, and defines domicile as the
country in which a person has his home and intends to live permanently. 100
The emphasis .on domicile of origin in the common-law provinces should also
be abandoned as it is now proposed in England and -already in force in the
United States. A domicile of choice should not be lost by leaving the country
of the domicile with the intent of never returning. The acquisition of a new
domicile should be required. The same weight of evidence should be adduced
101R.S.Q., 1941, c. 276 am. 1946 c. 20, 48, 49, 1947, c. 65, 1950, c. 70, 1952-3 c. 58, 59.
102[1954] O.R. 463, [1954] 3 D.L.R. 326.
103[1925] Ex. C.R.2. The company- was incorporated in Nova Scotia and had its
registered office there but was held not to be domiciled in that province. This view
would seem untenable in the case of a Dominion corporation since according to section
21 (1) the domicile must be within Canada which is the place of incorporation.
104Tyler v. C.P.R. Ry. Co. (1898), 29 O.R. 654, at p. 657, aff’d. 26 O.A.R. 467.
to05Cf. Restatement, s. 15.
‘0 6Art. 2. Graveson, Reform of the Law of Domicile, 70 L.Q. Rev. 492 also (1953),.
2 C.L.Q. 608; Cmd. 9068; In Canada there is an interest in adopting the Code. See
Proceedings of the 39th Annual Meeting of the Conference of Commissioners on
Uniformity of Legislation in Canada (1957), pp. 153 et seq.
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in case of change from a domicile of choice to another domicile of choice as
from a domicile of origin to a domicile of choice. This would take care of
the Canadian state of affairs where immigration is all important and people
move freely from province to province. In fact, by abolishing abandonment of
domicile animo et facto and adopting the rule that a domicile once acquired
continues until it is superseded by a new one, not only would the reverter
rule be eliminated, since no vacuum could exist, but also the distinction between
domicile of origin and domicile of choice would became unnecessary. Finally
the fiction that a married woman’s domicile depends on that of her husband
in all circumstances should also be abandoned. It is contrary to present social
conditions which the law should take into account.
In the province of Quebec, as well as in the common-law provinces,
it
would be well for the legislators to consider the work of the Commission of
Reform of the French Civil Code on domicile’ 07 as well as the draft Code
of Domicile prepared in England. The American Restatement may also be of
value.108 A strict application of the English rules of domicile to a federal state
like Canada relying mainly on immigration appears to be inappropriate and
it is to be hoped that the Conference of Commissioners on Uniformity “of
Legislation in Canada will maintain its reputation in this field of the law.
10 7Travaux de la Commission de Reforme du Code Civil (1950-1951) p. 117 et seq.
especially at p. 129.
108See Revision of Restatement, 1st draft (1957).