Canada: Right Back Where You Came From: Does The Law Of Your Birthplace Govern Your Estate Without You Even Knowing It?

If an individual is born in Alberta, lives and works in BC for more than a decade, then lives and works in Saskatchewan for more than a decade, then moves back to BC temporarily, while simultaneously searching for a residence in Costa Rica, where is this person domiciled?

If you answered Saskatchewan (where the individual had lived and worked for the past decade), British Columbia (where the individual was currently laying his head), or Costa Rica (where the person intended to live and work for the remainder of his days), your common sense has indeed betrayed you. The answer is actually Alberta (the place where the individual had not lived for several decades and had no intention of returning to). Welcome to the antiquated law of domicile.

The Saskatchewan Court of Appeal recently had the opportunity to apply the law of domicile to this unique set of facts in Scott v Vanston (2016 SKCA 75).

This case illustrates well that some of the principles of the law of domicile, like the doctrine of revival, are antiquated and out of touch with modern reality with its widespread immigration and mobility. Although, while this doctrine is still alive in some Canadian jurisdictions, like Saskatchewan, others have modified the doctrine, either by judicial intervention or by legislation.

Dr. Scott: The Well-Traveled Radiologist

The facts of this case seem drawn straight from a law school fact pattern. Dr. James Montague Scott was born in Calgary, Alberta in 1954. By 1988, he was practicing as a radiologist in Kelowna, British Columbia. He continued to practice in BC for over a decade until he was placed on probation by the British Columbia College of Physicians & Surgeons in 1998. He married and had two children in BC.

In 1999, Dr. Scott began living and practicing as a radiologist in Saskatoon, Saskatchewan. His first marriage had ended and his two children remained in BC. He began a new relationship with a woman from Kelowna in 2000; she eventually moved to Saskatoon to live with him in 2008.

In 2012, Dr. Scott's employment in Saskatoon was terminated. He spent the next six months looking for work, and ultimately concluded that it would be impossible for him to find employment as a radiologist in Saskatchewan. Dr. Scott and his partner decided to move back to Kelowna. They listed their condo in Saskatoon for sale, cancelled their cable and internet, sold their furniture, and placed their belongings in storage.

They moved a portion of their possessions into a rented residence in Kelowna on a three-month lease and registered their vehicle in BC. A week after their arrival, they travelled to Mexico and Costa Rica so that Dr. Scott could search for employment there. They came very close to purchasing a house in Costa Rica. Following their travel south, only one short week after they returned to BC, Dr. Scott passed away.

Following Dr. Scott's death, the issue of the applicable law with regards to his estate arose. Which province's laws appropriately governed Dr. Scott's will? His son argued that the applicable law was that of British Columbia, while his partner argued that it was Saskatchewan.

The Law of Domicile

The domicile of an individual is an important determination, as the law of that jurisdiction governs, among other things, the individual's marriage and estate. The principles of the law of domicile are as follows:

  1. An individual always has one, and only one, domicile.
  2. An individual begins with a "domicile of origin," which is either the place they were born, or the place where their parents were domiciled at the time of the individual's birth.
  3. A domicile of origin can be displaced by a "domicile of choice", which is the location where an individual has acquired a residence in fact and has the clear intention to remain in that location for an indefinite period of time. Establishing a domicile of choice is traditionally dictated by a high threshold in that the location must be freely chosen, as opposed to the new domicile being necessitated by external factors.
  4. An individual can abandon a domicile of choice by simultaneously ceasing to reside in a location in fact and by no longer intending to reside there permanently.
  5. If an individual abandons a domicile of choice, and subsequently fails to establish a new domicile of choice, the individual then reverts to their domicile of origin.

The law of domicile was developed by the courts of England and adopted by the Supreme Court of Canada before the turn of the 20th century.1 The last principle noted above is referred to as the doctrine of revival. It is premised on the idea that the domicile of origin is a creature of law that will never change throughout the lifetime of an individual. When an individual acquires a domicile of choice, their domicile of origin is merely held in abeyance, to be reverted to should the domicile of choice be lost.

The facts of a case like Scott illustrate the counter-intuitive results that can flow from the doctrine of revival in some instances.

Dr. Scott's Domicile

It was not in issue that Dr. Scott's domicile of origin was Alberta, that he subsequently acquired British Columbia as his domicile of choice in the 1980's and 90's, and acquired Saskatchewan as his domicile of choice in the 2000's. The main issues to be decided were (i) whether Dr. Scott had abandoned his domicile of choice in Saskatchewan, and (ii) whether Dr. Scott had re-acquired British Columbia as his domicile of choice.

On the first issue, the Court of Appeal upheld the trial judge's decision that Dr. Scott had abandoned Saskatchewan as his domicile of choice. He was no longer actually residing in Saskatchewan and had no intention of returning in the future.

On the second issue, the Court of Appeal also confirmed that Dr. Scott did not acquire BC as his domicile of choice. While Dr. Scott was living there in fact, the evidence indicated that he intended to live permanently in Central America where he could perhaps obtain a license to practice, which had been taken away in BC.

Accordingly, since Dr. Scott did not have a domicile of choice at the time of his death, the doctrine of revival dictated that his domicile should revert to that of his domicile of origin: Alberta.

The Doctrine of Revival Is Antiquated

The doctrine of revival is an anachronism that Canadian courts should consider moving away from. In the modern world of widespread immigration and a very mobile work force within Canada, the antiquated assumption that underlies the doctrine of revival (good sons always return home to take over the tilling of the crops) is inconsistent with reality.

The test for establishing a domicile of choice is incredibly strict. The purpose of the high threshold is to ensure that a domicile of choice cannot be established lightly or inadvertently, as an individual's domicile has serious consequences in that it can affect the law that applies to the person's marriage and dissolution of property upon death:

So heavy is the burden cast upon those who seek to shew that the domicil of origin has been superseded by a domicil of choice! And rightly, I think. A change of domicil is a serious matter serious enough when the competition is between two domicils both within the ambit of one and the same kingdom or country more serious still when one of the two is altogether foreign. The change may involve far reaching consequences in regard to succession and distribution and other things which depend on domicil.2

Other Canadian jurisdictions have previously considered the absurd results that can flow from the application of the doctrine of revival. In Re Montizambert Estate, the Ontario High Court of Justice noted, "While the law of domicile is sometimes, by its nature, artificial and confusing, it ought not to be totally divorced from reality."3 Where the result of the application of the doctrine of revival is contrary to a logical result on the applicable facts (for example, where a revived domicile of choice lacks any applicability whatsoever, as in Scott) that a judge has residual authority to deem that the last existing domicile of choice of the individual continues to apply. Manitoba has enacted legislation which dictates that the domicile of choice of an individual persists upon departure until a new domicile of choice has been established.4

The objective of certainty over which laws apply to each person seem to be better supported by the rule applied in the United States and Manitoba: a previous domicile continues to exist until a new one has been acquired.5 This doctrine is much more intuitive and would avoid absurd results such as those reached by the application of the traditional principles in Scott.

Case Information

Scott v Vanston, (2016) SKCA 75

Date of Decision: June 14, 2016

Docket: CACV2530

Footnotes

[1] Wadsworth v. McCord (1886), 12 S.C.R. 466. See also Trottier v Rajotte, [1940] S.C.R. 203; Osvath Latkoczy v Osvath-Latkoczy, [1959] S.C.R. 751; and Foote Estate, Re, 2011 ABCA 1.

[2] Winans v. Attorney General [1904] A.C. 287, at 291.

[3] Montizambert Estate (Re), [1973] O.J. No. 1035 at para 32.

[4] Domicile and Habitual Residence Act, CCSM c. D96, where s. 6 notes: "The domicile and habitual residence of a person continue until a person acquires a new domicile and habitual residence."

[5] Re Jones Estate (1921), 182 N.W. 227.

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