Foote Estate, Re, 2009 ABQB 654

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 01, 2009
• Citations: 2009 ABQB 654;(2009), 475 A.R. 273 (QB)

Foote Estate, Re (2009), 475 A.R. 273 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. NO.096

In the Matter of the Estate of Eldon Foote

Trudy David, Douglas Foote, Debbie Entwistle, Dean Foote, Laurie Evans and Anne Foote (applicants/plaintiffs) v. The Estate of Eldon Douglas Foot, The Lord Mayor's Charitable Fund and The Edmonton Community Foundation (respondents/defendants)

(ESO3 119897; 2009 ABQB 654)

Indexed As: Foote Estate, Re

Alberta Court of Queen's Bench

Judicial District of Edmonton

Graesser, J.

November 13, 2009.

Summary:

A testator's family, which wished to pursue family relief claims, applied for a determination of the testator's domicile at the time of his death (i.e., Alberta or British Columbia). The testator's estate and his charitable foundations claimed his domicile was the Norfolk Island (an island off Australia). A preliminary issue arose as to whether the Alberta court had jurisdiction, or should exercise jurisdiction, to determine the domicile issue.

The Alberta Court of Queen's Bench, in a decision reported 431 A.R. 338, held that the issue of where the testator was domiciled as at the date of his death would be determined in Alberta. The matter proceeded.

The Alberta Court of Queen's Bench, in the decision reported below, found that the testator's domicile at death was Norfolk Island. He had adopted that domicile at the time he became a resident of that island, in April 1972.

Conflict of Laws - Topic 201

Domicile - General - The Alberta Court of Queen's Bench reviewed the law relating to domicile - See paragraphs 14 to 100 and 544.

Conflict of Laws - Topic 201

Domicile - General - The Alberta Court of Queen's Bench held that when determining issues of domicile, the court was to apply the law of the jurisdiction where the issue of domicile was raised, i.e., the lex fori - See paragraphs 14 to 16 - The court (Graesser, J.) stated that "there is no pressing public policy need to change the application of the lex fori to matters of domicile. As a result, I conclude that where any case-law that suggests that the laws of another jurisdiction may be considered in determining questions of domicile, that case-law does not reflect the law of Alberta and I decline to follow that jurisprudence" - See paragraphs 99 and 544.

Conflict of Laws - Topic 201

Domicile - General - The Alberta Court of Queen's Bench stated that "A person's domicile is independent of their nationality: 'individuals can change their domicile without changing their nationality, and they can change their nationality without changing their domicile'" - See paragraph 18.

Conflict of Laws - Topic 243

Domicile - Change of domicile - Domicile of origin - Foote was born in Alberta in 1924 (domicile of origin) - In 1967 he gave up his law practice to pursue business interests abroad - He took steps to cease to be a Canadian resident for income tax purposes and purchased property on Norfolk Island - He was often away from Norfolk Island often for business reasons - He remained a Canadian citizen - The Alberta Court of Queen's Bench concluded that Foote abandoned his domicile of origin in favour of a domicile of choice in Norfolk Island in 1972 - In reaching this conclusion, the court considered Foote's ongoing connections to Alberta and Canada, his intention to make a life outside Alberta, his buying property and establishing a residence in Norfolk Island (1972) and his intentions in doing so, and his acquiring permanent resident status in the Norfolk Island in 1977 - He had the intention to establish an indefinite residence on Norfolk Island - The court held further, that he neither adopted a new domicile of choice in British Columbia in his final years when he considered relocating to Canada and took a number of steps in that regard, including purchasing a condominium in Victoria, nor did he abandon his Norfolk Island domicile - The Victoria residence was not his chief or principal residence - Further, his returning to Alberta for cancer treatments shortly before he died in 2004, did not establish a new domicile of choice in Alberta or revive his domicile of origin in Alberta - Foote's domicile at death was Norfolk Island - See paragraphs 188 to 541.

Conflict of Laws - Topic 243

Domicile - Change of domicile - Domicile of origin - The Alberta Court of Queen's Bench stated that "A person has one domicile at any point in their life, no matter what their circumstances or actions. That domicile may change from time to time, but there is always only one domicile for a person. A new domicile 'displaces' an older domicile. The circumstances into which one is born (generally, parental domicile) dictate a person's first domicile, which is known as a 'domicile of origin'. Other domiciles are ones in which a person has chosen to live, and are called 'domiciles of choice'." - See paragraph 19.

Conflict of Laws - Topic 243

Domicile - Change of domicile - Domicile of origin - The Alberta Court of Queen's Bench stated a person always has a domicile and a person can only have one domicile at a time - The domicile of origin (into which one is born) is to be given considerable weight and is not easily displaced - The court stated that "A domicile of choice may be acquired when a person forms an intention to permanently reside in a new jurisdiction, and puts that intention into effect by taking positive steps to move to this new jurisdiction and establish a permanent residence there" - Both these criteria (i.e., location and intention) had to be present to establish a domicile of choice, either alone was not sufficient - The two criteria had to be simultaneous - The court discussed what it took to establish these criteria - See paragraphs 22 to 36.

Conflict of Laws - Topic 243

Domicile - Change of domicile - Domicile of origin - The Alberta Court of Queen's Bench stated that "A domicile of choice may be acquired when a person forms an intention to permanently reside in a new jurisdiction, and puts that intention into effect by taking positive steps to move to this new jurisdiction and establish a permanent residence there" - The court stated that it was certainly possible to abandon a domicile of choice or origin in favour of a new domicile of choice, but such change involved more than a change in intention and required some act of abandonment - A party asserting a change in domicile had the onus of proving the change - The declared intentions respecting domicile were relevant; however, a person's own evidence could be "viewed with suspicion" - Rather conduct was the focus for analysis - See paragraphs 51 to 63.

Conflict of Laws - Topic 243

Domicile - Change of domicile - Domicile of origin - The Alberta Court of Queen's Bench stated that the English common law has historically held that there was a higher standard of proof to establish that a domicile of origin had been displaced than applicable in establishing that a domicile of choice had been displaced (i.e., it was easier to displace a domicile of choice than a domicile of origin) - The court noted, however, that the Supreme Court of Canada, in F.H. v. McDougall (2008), had established that in Canada there was only one civil standard of proof and that was proof on a balance or probabilities - The court stated that that decision changed the Canadian common law of domicile in several ways: "The same standard of proof, a balance of probabilities, is required to demonstrate either: 1. displacement of a domicile of origin or a domicile of choice; 2. displacement of a domicile within the same or to a different country; and 3. displacement of a domicile by a second domicile with substantially different language, climate, ethnic, cultural or religious characteristics" - Case law to the contrary was no longer good law in Canada - See paragraphs 65 to 74 and 544.

Conflict of Laws - Topic 243

Domicile - Change of domicile - Domicile of origin - The Alberta Court of Queen's Bench stated that "Under the common-law, which is the law that applies in most of Canada, the domicile of origin is given special status. A domicile of origin can be displaced by a new domicile chosen by a person, but if the domicile of choice is lost or abandoned for some reason, the domicile of origin revives unless and until a new domicile of choice is established. A person can never be without a domicile, and the domicile of origin, though displaced in favour of a domicile of choice, essentially remains latent and is automatically revived if no new domicile of choice is immediately created ... It is also clear that, in regards to the revival of the domicile of origin, Alberta law is the common law. Regardless of the intentions of the person, domicile of origin revives when a domicile of choice is abandoned without establishing a new domicile of choice ..." - See paragraphs 77 and 78 - The court stated that a common law judge had a residual authority to depart from the revival of the domicile of origin to avoid an absurd result - See paragraphs 97 and 544.

Conflict of Laws - Topic 243

Domicile - Change of domicile - Domicile of origin - The Alberta Court of Queen's Bench noted that under Canadian common law if the domicile of choice was lost or abandoned for some reason, the domicile of origin revived unless and until a new domicile of choice was established - The court noted that the common law rule of revival had been removed in Australia (Norfolk Island) by legislation (Domicile Act, 1982) - Under that legislation a domicile of choice remained a person's domicile unless and until it was replaced by a new domicile of choice - Once replaced, a domicile of origin ceased to have any relevance and the concept of abandonment of domicile was also irrelevant - The court elaborated on the differences and similarities in the operation of the Alberta and Australian rules relating to domicile - The court noted that the law relating to acquisition of a domicile of choice was the same under both Canadian and Norfolk Island law (i.e., domicile of choice was established by forming an intention to indefinitely reside in a particular jurisdiction, and by actually putting that intention into effect by taking positive steps to move there and establish an onging residence there) - See paragraphs 81 to 89.

Conflict of Laws - Topic 243

Domicile - Change of domicile - Domicile of origin - At issue was whether a testator's domicile at the time of his death was Alberta, British Columbia or Norfolk Island - The matter proceeded in Alberta (the lex fori) - Under the common law of Alberta, if the domicile of choice was lost or abandoned for some reason, the domicile of origin revived unless and until a new domicile of choice was established - In the Norfolk Island, that common law rule on revival had been replaced by legislation which provided that a domicile of choice remained a person's domicile unless and until it was replaced by a new domicile of choice - An issue arose as to whether, despite the commonly accepted principle that the lex fori was used to determine questions of domicile, the principle of renvoi should be applied, such that the law of the Norfolk Island would be used - The Alberta Court of Queen's Bench held that it would apply the common law doctrine of revival of the domicile of origin to the issues raised in this case - See paragraphs 75 to 98.

Conflict of Laws - Topic 243

Domicile - Change of domicile - Domicile of origin - The Alberta Court of Queen's Bench stated that "A domicile of choice may be acquired when a person forms an intention to permanently reside in a new jurisdiction, and puts that intention into effect by taking positive steps to move to this new jurisdiction and establish a permanent residence there" (Trottier v. Rajotte (SCC 1940)) - The court stated that while a person's location and residence were typically easily established, the mental component of the two-part domicile of choice test identified in Trottier v. Rajotte was more complex - It was clear that temporary residency in another jurisdiction, for example for employment purposes or for a limited time, would not displace a domicile of origin (or a domicile of choice), rather it had to be an "indefinite" residence - Further, a general intention to return at some future, unspecified time to the domicile of origin did not prevent a domicile of choice from being established - The court discussed the different methods applied in the case law for determining what was meant by "indefinite" in this context - See paragraphs 25 and 40 to 50 and 544.

Conflict of Laws - Topic 243

Domicile - Change of domicile - Domicile of origin - The Alberta Court of Queen's Bench stated that "A domicile of choice may be acquired when a person forms an intention to permanently reside in a new jurisdiction, and puts that intention into effect by taking positive steps to move to this new jurisdiction and establish a permanent residence there" - The court stated that a temporary residency in another jurisdiction would not displace a domicile of origin (or a domicile of choice), rather it had to be an "indefinite" residence - The court stated that an intention to establish an indefinite residence required "1. that the person: a. had not moved to the new residence for a specific purpose, such as for one's health, travel, or business; but b. had moved to the new residence for the purpose of making that location the person's principal place of residence; and 2. that the period of residence has no predetermined end point; and 3. there are no clear and identified criteria on which that residency will end" - See paragraphs 25 and 40 to 50 and 272.

Conflict of Laws - Topic 243

Domicile - Change of domicile - Domicile of origin - The Alberta Court of Queen's Bench stated that the Canadian case law made it very clear that where a person travels to a location to obtain medical treatment, that change of location does not affect domicile - See paragraph 523.

Conflict of Laws - Topic 243

Domicile - Change of domicile - Domicile of origin - The Alberta Court of Queen's Bench discussed whether a person who relocates to another location to die changes domicile - The court (Graesser, J.) stated that "if there is a principle that any decision to live one's remaining days in a place will result in that place being the person's domicile at the date of his or her death, I decline to follow it ... There may be instances where such a finding is appropriate, but that would depend on a number of circumstances, such as the length of time remaining, the disposition of property in the former location, the acquisition of property in the new location and the nature of the residence in the new location, to name some of the factors. But a move to a hospital bed and a decision relating to palliative care that results in one's death in that location would not, of themselves, constitute an abandonment of the former domicile and acquisition of a new domicile of choice. The first was relocation for a purpose, the latter was not a choice" - See paragraphs 529 to 536.

Conflict of Laws - Topic 244

Domicile - Change of domicile - Domicile of choice - The Alberta Court of Queen's Bench discussed the criteria for determining whether a domicile of choice had been abandoned - See paragraphs 490 to 509.

Conflict of Laws - Topic 244

Domicile - Change of domicile - Domicile of choice - The Alberta Court of Queen's Bench stated that "A domicile of choice may be acquired when a person forms an intention to permanently reside in a new jurisdiction, and puts that intention into effect by taking positive steps to move to this new jurisdiction and establish a permanent residence there" - The court held that a person who retained a residence in his domicile of origin could acquire a domicile of choice only if the residence established in that country was his chief residence - The court discussed the characteristics of a chief residence - The court commented that a person's chief residence was best identified by tangible factors, including economic links between a residence and its occupant - What might be described as a sentimental attachment to a potential chief residence should have little, if any, weight - See paragraphs 25, 37 to 39, 466 to 479 and 544.

Conflict of Laws - Topic 244

Domicile - Change of domicile - Domicile of choice - [See all Conflict of Laws - Topic 243 ].

Conflict of Laws - Topic 247

Domicile - Change of domicile - Doctrine of revival - [See first, sixth, seventh and eighth Conflict of Laws - Topic 243 ].

Conflict of Laws - Topic 1683

Actions - General - Choice of law - Renvoi - [See eighth Conflict of Laws - Topic 243 ].

Cases Noticed:

Davies v. Davies (1985), 64 A.R. 73; 40 Alta. L.R.(2d) 203 (Q.B.), not folld. [para. 98]; refd to. [para. 13].

Henderson v. Muncey, [1943] 4 D.L.R. 758; 59 B.C.R. 312 (C.A.), refd to. [para. 13].

Montizambert Estate, Re, [1973] O.J. No. 1035 (S.C.), refd to. [para. 13].

Battagin v. Battagin (1980), 28 A.R. 586 (Q.B.), refd to. [para. 13].

Urquhart Estate, Re (1990), 74 O.R.(2d) 42; 38 E.T.R. 222 (H.C.), affd. (1991), 52 O.A.C. 21; 82 D.L.R.(4th) 604 (Div. Ct.), refd to. [para. 13].

Taylor v. Dolise - see Urquhart Estate, Re.

Schwebel v. Ungar, [1965] S.C.R. 148; 48 D.L.R.(2d) 644, refd to. [para. 13].

Trottier v. Rajotte, [1940] S.C.R. 203; [1940] 1 D.L.R. 433, refd to. [para.13].

Hyland v. Hyland (1971), 18 F.L.R. 461 (N.S.W. Sup. Ct.), refd to. [para. 13].

Inland Revenue Commissioners v. Portland (Duchess), [1982] 1 Ch. 314, refd to. [para. 13].

Ramsay v. Liverpool Royal, [1930] All E.R. 127 (H.L.), refd to. [para. 13].

Udny v. Udny (1869), L.R. 1 Sc. & Div. 441 (H.L.), refd to. [para. 13].

Biggar v. Biggar, [1930] 2 D.L.R. 940; 42 B.C.R. 329 (S.C.), refd to. [para. 13].

Cohen v. Cohen (1978), 19 O.R.(2d) 738; 86 D.L.R.(3d) 461 (U.F.C.), refd to. [para. 13].

Cary v. Cary and Romanchuk, [1942] 2 W.W.R. 389 (Sask. K.B.), refd to. [para. 13].

Jones v. Kline, [1938] 3 W.W.R. 65; 1938 CarswellAlta 54 (S.C.), refd to. [paras. 13, 502].

Rattenbury Estate, Re, [1936] 2 W.W.R. 554; 51 B.C.R. 321 (S.C.), refd to. [para. 13].

Osvath-Latkoczy v. Osvath-Latkoczy et al., [1959] S.C.R. 751; 19 D.L.R.(2d) 495, refd to. [para. 13].

Waggoner v. Waggoner (1956), 20 W.W.R.(N.S.) 74 (Alta. T.D.), refd to. [para. 13].

Attorney General v. Fitzgerald, [1856] S.V. 25 L.J. Ch. 743, refd to. [para. 13].

Bell v. Kennedy (1868), L.R. 1 Sc. & Div. 441, refd to. [para. 13].

Flynn v. Flynn, [1968] 1 All E.R. 49, refd to. [para. 13].

Annesley, Re, [1926] Ch. 692, refd to. [para. 13].

Lam Kiu Wong and Secretary to Department of Social Security, Re, [1986] AATA 45, refd to. [para. 13].

Ross v. Ross, [1930] A.C. 1, refd to. [para. 13].

Chochinov v. Davis et al. (1980), 4 Man.R.(2d) 325; 113 D.L.R.(3d) 715 (C.A.), refd to. [para. 13].

Gillespie et al. v. Grant et al. (1992), 132 A.R. 288; 4 Alta. L.R.(3d) 122 (Surr. Ct.), refd to. [para. 13].

Fedeluk v. Fedeluk (1968), 63 W.W.R.(N.S.) 638 (Alta. C.A.), refd to. [para. 13].

Winans v. Attorney General, [1904-07] All E.R. Rep. 410, refd to. [para. 13].

Bowie v. Liverpool Royal Infirmary, [1930] All E.R. Rep. 127 (H.L.), refd to. [para. 113].

Plummer v. Inland Revenue Commissioner, [1988] 1 W.L.R. 292, refd to. [para. 13].

Corlet and Isle of Man Bank (No. 2), Re, [1938] 3 D.L.R. 800; [1938] 3 W.W.R. 20 (Alta. S.C.), refd to. [para. 13].

Fuld, Re, [1966] 2 W.L.R. 717 (P.D.A.), refd to. [para. 21].

Lord v. Colvin (1859), 4 Drew. 366; 62 E.R. 141, refd to. [para. 49].

Wadsworth v. McCord (1886), 12 S.C.R. 466, refd to. [para. 49].

Gunn v. Gunn and Savage (1956), 18 W.W.R.(N.S.) 85; 2 D.L.R.(2d) 351, refd to. [para. 49].

Frey v. Heintzl Estate (1988), 24 B.C.L.R.(2d) 25; 9 A.C.W.S.(3d) 57 (S.C.), refd to. [para. 49].

Lauderdale Peerage Case (1885), 10 App. Cas. 692, refd to. [para. 58].

Walsh v. Herman (1908), 13 B.C.R. 314; 7 W.L.R. 388 (C.A.), refd to. [para. 67].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para.71].

McCallum v. Ryan Estate et al., [2002] O.T.C. 273; 45 E.T.R.(2d) 113 (Sup. Ct.), refd to. [para. 80].

Fremlin v. Fremlin (1913), 16 C.L.R. 212, refd to. [para. 88].

Kaur v. Narula, [2007] FMCAfam 657, refd to. [para. 88].

Miller v. Teale (1954), 92 C.L.R. 406, refd to. [para. 88].

Geothermal Energy New Zealand Ltd. v. Commissioner of Inland Revenue, [1979] 2 NZLR 324, refd to. [para. 88].

Erasti Petropoulos, Re and Director General of Social Security, [1984] AATA 334, refd to. [para. 88].

Gape, Re; Verey v. Gape, [1952] Ch. 418, affd. [1952] Ch. 743, refd to. [para. 266].

Marrett, Re; Chambers v. Wingfield, [1886-90] All E.R. Rep. 816, refd to. [para. 496].

Fleming v. Horniman (1928), 138 L.T. 669, refd to. [para. 505].

Moorhouse v. Lord (1863), 10 H.L. Cas. 272, refd to. [para. 530].

Authors and Works Noticed:

Castel, Jean-Gabriel, and Walker, Janet, Canadian Conflict of Laws (6th Ed. 2005), generally [para. 13]; pp. 4-2 [paras. 16, 90]; 4-3 [paras. 24, 77]; 4-4 [paras. 26, 37]; 4-5 [paras. 18, 26, 45]; 4-6 [para. 26].

Castel, Jean-Gabriel, Conflict of Laws, Cases, Notes and Materials (6th Ed. 1988), generally [para. 493].

Dicey, Albert Venn, and Morris, J.H.C., Conflict of Laws (11th Ed. 1987), pp. 122, 147, 148 [para. 493].

Dicey, Albert Venn, and Morris, J.H.C., Conflict of Laws (12th Ed. 1993), generally [para. 13].

Dicey, Morris and Collins on the Conflict of Laws (14th Ed. 2006), generally [para. 13]; pp. 129 [para. 16]; 132 [para. 24]; 133 [para. 26]; 151, 152 [para. 77].

Fawcett, James, Carruthers, Janeen, and North, Peter, Cheshire, North & Fawcett, Private International Law (14th Ed. 2008), generally [para. 13]; pp. 157 [paras. 16, 26]; 168, 169 [para. 529]; 171 [para. 24]; 173 [para. 77].

Graveson, Ronald Harry, Capacity to Acquire a Domicile (1950), 3 Int. L.Q. 371, generally [para. 13].

Graveson, Ronald Harry, Conflict of Laws (7th Ed. 1974), generally [para. 13].

Counsel:

John M. Hope, Q.C., and Bryan Kwan (Duncan & Craig LLP), for Trudy David, Douglas Foote, Debbie Entwistle, Dean Foote and Laurie Evans;

Scott J. Hammel and Sandra L. Hawes (Miller Thomson LLP), for Anne Foote;

Daniel Hagg, Q.C. (Bryan & Company LLP), for the Estate of Eldon Douglas Foote;

Bruce Comba (Emery Jamieson LLP), for the Lord Mayor's Charitable Fund;

Karen Platten and Anita Mohan (McLennan Ross LLP), for the Edmonton Community Foundation.

This matter was heard on April 14-17, 20-24, 27-30, and May 1, 2009, before Graesser, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on November 13, 2009.