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

September 2006

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Prepared by:
Gérald Goldstein
LL.D., Full Professor
Faculty of Law, Univ. de Montréal

Presented to:
Family, Children and Youth Section
Department of Justice Canada

The views expressed in this report are those of the author and do not necessarily represent the views of the Department of Justice Canada.

Aussi disponible en français

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This paper was written in French under the title, Les notions de résidence habituelle et de résidence ordinaire à la lueur du droit civil québécois, de la Loi sur le divorce et des Conventions de La Haye de 1980 et de 1996.
This translation was commissioned by the Department of Justice Canada.

This report may be reproduced, in part or in whole, and by any means, without charge or further permission from the Department of Justice Canada, provided that due diligence is exercised in ensuring the accuracy of the materials reproduced; that the Department of Justice Canada is identified as the source department; and that the reproduction is not represented as an official version of the original report.

© Her Majesty the Queen in Right of Canada,
    represented by the Minister of Justice and
    Attorney General of Canada, 2006

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Table of Contents

OVERVIEW

PART I: HABITUAL RESIDENCE IN QUEBEC LAW AND UNDER THE 1980 AND 1996 HAGUE CONVENTIONS

Question 1: Meaning of "residence" in Quebec civil law

1.A Traditional definition of residence
1.B Meaning under Civil Code: stable and therefore ordinary residence

Question 2: Meaning of the concept of habitual residence in Quebec civil law and under the 1980 and 1996 Hague Conventions

2.A Meaning of the concept of "habitual residence" in Quebec civil law
2.B Meaning of the concept of "habitual residence" under the 1980 Hague Convention on International Child Abduction
2.C Meaning of the concept of "habitual residence" under the 1996 Hague Convention on Child Protection

Question 3: Differences of interpretation of the concept of "habitual residence" in Quebec civil law and under the 1980 and 1996 Hague Conventions

3.A General rules of interpretation of habitual residence
3.B Specific rules on habitual residence

Conclusion

PART II: HABITUAL RESIDENCE AND ORDINARY RESIDENCE IN QUEBEC LAW AND UNDER THE DIVORCE ACT

Question 4: Existence and meaning of the concept of ordinary residence in Quebec civil law

4.A Absence of specific meaning
4.B The terms "ordinary residence" and "habitual residence" are understood as one concept

Question 5: Is there a difference of interpretation in Quebec case law between the French version ("résidence habituelle") and the English version ("ordinary residence") of article 77 of the Civil Code?

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

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

ENDNOTES

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