Domicile and Residence

• Author: Stephen G.A. Pitel/Nicholas S. Rafferty
• Profession: Faculty of Law, University of Western Ontario/Faculty of Law, University of Calgary
• Pages: 9-28

9

CHAP TER 2

DOMICILE AND

RESIDENCE

A. I NTRODUC TION

The previous chapter identif‌ied the three fundament al questions in the

conf‌lict of laws, and the f‌irst question is addressed starting in Chapter

5. The present chapter and the two that follow deal with subjects that

cannot easily be encompass ed by one of the three fundamental que s-

tions. They deal with subjects that are relevant, i n differing ways, to each

question, and so it is useful to consider them separately. Despite where

they appear in this book, it is not essential that they be considered at the

outset. Analysis of these subjects could be postponed until they become

relevant to a specif‌ic conf‌licts problem. This chapter is a good example.

Domicile and residence are quite important in cert ain areas —the former

in the law of succession and the latter in f amily law, among others —but

often play only a small role in corporate and commercial cases.

The conf‌lict of laws has long been interested in identifying an in-

dividual’s “personal law,” thought to be the law of the place to which

the individual has the closest ongoing connection. The notion was that

individuals carried their personal law with them, as a pa rt of them,

wherever they went in the world, and that it governed issues relating

to the individual’s personal st atus. This approach was important, for

example, under Roman law as people traveled acro ss the Empire. There

are several different ways that an individual’s personal law can b e as-

certained. Civi l law systems frequently u se the concept of nationality

or citizenship, which can be formally acquired in different ways. How-

CONFLICT OF LAWS

10

ever, these have not tended to be used in common law systems, wh ich

instead have used t he concepts of domicile and residence.

B. DOMICILE

There are three main ty pes of domicile, each of which may be obtained

by an individual accordi ng to a complex set of rules.1 First, a “domicile

of origin” is ascribed to every individual at birth. This domicile stays

with the indiv idual for life and is the most tenacious. Second, once

an individual reache s the age of majority, he or she is free to adopt a

“domicile of choice” by taking up residence in a particular countr y and

intending to remain there indef‌initely. Third, individuals that are seen

to be legally dependant on another w ill be ascribed the domicile of that

other person as their “domicile of dependency.” Each of these is di s-

cussed in detail b elow. The rigid requirements of the types of domicile

often make it diff‌icult to ascert ain an individual’s domicile at a particu-

lar time in his or her life. In addition, several rules regulate any change

between the type s of domicile.

Because dom icile is us ed as a mea ns of identifying a n individual’s

personal law, and thereby linking an individual to a par ticular legal

system, the central rule is that an individual may only have one domi-

cile at any given time.2 More technically, an individual may only have

one domicile for a particular purpose at any given time. This is espe-

cially true in a federal country like Ca nada.3 Depending on which level

of government —federal or prov incial —has jur isdiction t o regulate a n

issue, an individual can be domiciled in both Canada and in Ontario.

Nevertheless, when a court is required to identify an indiv idual’s domi-

cile for a particular pur pose it must identify a single domicile.

1) Domicile of Origin

The development of the concept of domicile of origin i s largely shaped

by the rule that no indiv idual may be w ithout a domicile at any particu-

lar time.4 It must always be possible to identify a person’s domicile and

1 In the context of the a nalysis of domicile, the ind ividual concerned is some-

times cal led the “propositus.”

2Udny v. Udny (1869), L.R. 1 Sc. & Div. 441 (H.L.) [Udny]; Re Foote Estate, 2009

ABQB 654 at para. 2 3. This gives domicile a conceptua l advantage over citizen-

ship, since many people a re citizens of more than one c ountry.

3 This illust rates another advantage dom icile has over citizensh ip, as this concept

is less mean ingful in the context of federa l countries.

4Udny, above note 2.