STUDY OF THE DISSOCIATION BETWEEN FEDERAL TAX LEGISLATION AND QUEBEC CIVIL LAW

Author: François Auger*

TABLE OF CONTENTS

INTRODUCTION
1 DEFINITION OF RESIDENCE
1.1 THE CONCEPT OF RESIDENCE UNDER THE INCOME TAX ACT
1.1.1 ORDINARY RESIDENCE
1.1.2 STATUTORY PRESUMPTION OF RESIDENCE
1.1.3 ADMINISTRATIVE POSITIONS AND PRESUMPTIONS– INTERPRETATION BULLETIN IT-221R2
1.2 THE CONCEPT OF RESIDENCE IN COMMON LAW
1.3 THE CONCEPT OF RESIDENCE AS DEVELOPED BY STATUTE LAW: IMMIGRATION LAW
1.4 THE NOTIONS OF RESIDENCE AND DOMICILE IN QUEBEC CIVIL LAW
1.4.1. THE NOTION OF RESIDENCE
1.4.2. THE NOTION OF DOMICILE
1.5 OTHER TAX LAWS
1.5.1 EXCISE TAX ACT
1.5.1.1 THE NOTION OF RESIDENCE
1.5.1.2 SPECIFIC PRESUMPTIONS IN THE E.T.A
1.5.2 THE ACT RESPECTING THE QUEBEC SALES TAX
1.5.3 THE QUEBEC TAX ACT
2 COMPARISON BETWEEN THE NOTIONS OF RESIDENCE AND DOMICILE IN QUEBEC CIVIL LAW AND THE NOTION OF RESIDENCE FOR TAX PURPOSES
3 RECOMMENDATIONS
BIBLIOGRAPHY

Analyse the concept of residence in the Income Tax Act and determine how it may be
distinguished from the notion of residence or domicile in the C.C.Q. Compare the
principles developed by the jurisprudence in tax law and in Quebec civil law. Comment
on section 7.14 of the Taxation Actregarding the notion of residence under that statute.

INTRODUCTION
The notion of residence in tax law is a key concept, causing people to be subject to Canadian
and Quebec tax. The determination of whether an individual is a resident of Canada or of
Quebec allows the relevant tax authorities to levy tax on an individual’s world-wide income.
The concept of residence is not limited to tax law. It is a central concept which is found in
several other fields of law, such as administrative law, social law and immigration law. Note that
each of these fields uses its own definition of residence, which differs, to varying degrees, from
the notion of residence used in tax law.
In general, the Civil Code of Québec[1] defines residence as the place where a person
ordinarily resides. It is important, however, to distinguish residence from domicile in the
C.C.Q.. Neither of these notions corresponds perfectly to the notion of residence developed
under tax law. In fact, it could be said that residence under tax law is mid-way between the
concept of residence and that of domicile in civil law.
We will begin by describing and comparing the concepts of residence and domicile as they are
used in tax law, on the one hand, and in the two sources of private law in Canada—the
common lawand the C.C.Q.—on the other hand. In view of this comparison, we will examine
the implications associated with the status of resident in the Income Tax Act[2], as well as in
certain other tax legislation.
Finally, taking into account the diversity of definitions of residence and domicile, but especially
the wish of the Canadian government to harmonize a federal tax legislation in harmony with the
principles of Quebec civil law, we will propose an explicit derogation from article 77 of the
C.C.Q. similar tosection 7.14 of the Taxation Act (Quebec)[3].
This review will only cover the residence of individuals within the meaning of the I.T.A.and the
residence and domicile of natural persons within the meaning of the C.C.Q.
1 DEFINITION OF RESIDENCE
1.1 THE CONCEPT OF RESIDENCE UNDER THE INCOME TAX ACT
An individual may be considered to reside in Canada for tax purposes if one of two general
tests is met. First, an individual may be a resident of Canada under the common law principles
established by the case law; this is what is known as "ordinary residence". Second, he may be
deemed to be a resident Canadian under a specific provision of the I.T.A.. This is the case of a
taxpayer who "sojourns" in Canada for more than 183 days.
1.1.1 ORDINARY RESIDENCE
Despite its importance in Canadian tax law, the notion of residence is not defined in theI.T.A..
At the most, the I.T.A. provides that:
"non-resident" means not resident in Canada.[4]
Ordinarily resident. In this Act, a reference to a person resident in Canada includes a person
who was at the relevant time ordinarily resident in Canada.[5]
In the absence of a statutory definition, the jurisprudence has developed guiding principles
governing the determination of residence in a tax context. A review of the tax case law is thus
necessary to understand the tests used by the private law courts to determine an individual’s
residence. The author Evans states the following:
The provisions of the Act concerning the meaning of "resident" are of narrow application
and limited utility. As a consequence of this statutory vacuum, a significant body of
jurisprudence has developed to interpret the concept of residence for income tax
purposes. The facts of these cases are as unique as the taxpayers involved. Even
where the facts may appear similar, the same result is not assured, and the distillation of
general principles from these cases can be a frustrating endeavour.[6]
It is important to understand that the notion of residence for tax purposes is not synonymous
with physical presence. Rather, it is an ensemble of legal and economic connections which ties
an individual to Canada. A person who is physically present in Canada is not necessarily
ordinarily resident here, and vice versa. The determination of residence depends on the specific
facts and circumstances of each case. It is therefore not always easy to develop uniform
criteria. As mentioned by Rand J. in the Thomson[7] case:
The graduation of degrees of time, object, intention, continuity and other relevant
circumstances, shows, I think, that in common parlance "residing" is not a term of
invariable elements, all of which must be satisfied in each instance. It is quite impossible
to give it a precise and inclusive definition. It is highly flexible, and its many shades of
meaning vary not only in the contexts of different matters, but also in different aspects of
the same matter. In one case it is satisfied by certain elements, in another by others,
some common, some new.
The expression "ordinarily resident" carries a restricted signification, and although the
first impression seems to be that of preponderance in time, the decisions on the English
Act reject that view. It is held to mean residence in the course of the customary mode
of life of the person concerned, and it is contrasted with special or occasional or casual
residence. The general mode of life is, therefore, relevant to a question of its
application.
For the purpose of income tax legislation, it must be assumed that every person has at
all times a residence. It is not necessary to this that he should have a home or a
particular place of abode or even a shelter. He may sleep in the open. It is important
only to ascertain the spatial bounds within which he spends his life or to which his
ordered or customary living is related. Ordinary residence can best be appreciated by
considering its antithesis, occasional or casual or deviatory residence. The latter would
seem clearly to be not only temporary in time and exceptional in circumstances, but also
accompanied by a sense of transitoriness and of return. (Emphasis added)[8]
We can, however, extract certain general guidelines which allow us to weigh the different criteria
used by the courts to determine an individual’s residence:
* a taxpayer must have a residence[9];
* a taxpayer may have more than one residence[10];
* a taxpayer need not have a fixed establishment to be a resident of a country;
* although residence does not require a constant presence in the jurisdiction, mere
presence in the jurisdiction does not necessarily mean that the taxpayer has established
his residence there;
* the number of days spent in the jurisdiction is not material to establishing residence
(subject to the statutory presumptions, which will be discussed below);
* residence for tax purposes is not necessarily determined by free choice; it may also be
determined by the authorities, by business requirements, etc.[11];
* intention and free will, which are essential for determining domicile, are not necessary to
establish residence[12].
The following constitute examples of indicia relevant to determining an individual’s country of
residence for tax purposes:
* the taxpayer’s nationality;
* past and present life habits;
* location of family home;
* family and social ties;
* business ties;
* purposes of stay;
* ownership of a dwelling or rental of a dwelling on a long-term basisin Canada;
* mailing address in Canada;
* telephone listing in Canada;
* memberships with Canadian churches, clubs, etc.;
* physical presence and frequency of visits to Canada;
* holding credit cards and bank accounts in Canada;
* membership in a Canadian pension plan;
* Canadian driver’s licence;
* Canadian health insurance card;
* filing a Canadian income tax return;
* employment or a prospect of employment in Canada;
* storage of personal belongings in Canada;
* severing all ties with another country of residence;
* obtaining landed immigrant status.[13]
1.1.2 STATUTORY PRESUMPTION OF RESIDENCE
Subsection 250(1) I.T.A. describes certain situations in which a taxpayer is deemed to be
resident in Canada.[14]
We will first turn our attention to paragraph (a). Notwithstanding the jurisprudential principle
stated above to the effect that the number of days spent in the jurisdiction is not material in
establishing residence, an individual will be deemed to be resident in Canada if he sojourned in
Canada in the year for a period of, or periods the total of which is, 183 days or more.
Although the deemed residence test appears to be easier to apply, the fact remains that
"sojourn" is not defined in the I.T.A. It suggests a temporary condition, as opposed to the more
permanent concept of residence. As Estey J. stated in Thomson:
A reference to the dictionary and judicial comments upon the meaning of these terms
indicates that one is "ordinarily resident" in the place where in the settled routine of his
life he regularly, normally or customarily lives. One "sojourns" at a place where he
unusually, casually or intermittently visits or stays. In the former the element of
permanence; in the latter that of the temporary predominates[15].
It is generally understood that the notion of residence takes precedence over that of sojourn.
Accordingly, if it is held that an individual’s ties to Canada are sufficient to make him a resident,
it will be impossible for that individual to declare himself a non-resident because he has not
sojourned in Canada 183 days or more. In this respect, note that the corresponding
presumption in paragraph 8(1)a) of the Q.T.A. reads as follows:
An individual is deemed to have been resident in Quebec throughout a taxation year if,
at any time in the year, the individual
a) sojourned in Quebec for a period of, or periods the total of which is, 183 days or
more and was ordinarily resident outside Canada;
The Q.T.A. is thus clear on this point—a taxpayer cannot be subject to the provisions of
paragraph 8(1)a) if he is already ordinarily resident.
The notion of what constitutes a "day" for the purposes of applying the deemed residence
provisions must also be determined. The term "day" normally covers a 24-hour period. This,
however, is not the opinion of the Canada Customs and Revenue Agency (hereinafter
"CCRA"). According to the CCRA, a day is any day during which a person is present in
Canada, regardless of the number of hours. The case law, however, does not support this
position. In Stephens v. MNR[16], it was held that in calculating the number of days during
which a taxpayer has sojourned in Canada during the year, the number of days in which the
taxpayer was only in Canada for one hour should not be taken into account.
It has been established that people who commute between Canada and the United States are
not sojourning in Canada within the meaning of paragraph 250(1)a) for the sole reason that they
work in Canada, if their centre of vital interests is in the United States [17]. As stated by
Prociuk J.:
In pursuing numerous cases decided by the Canadian and British Courts, it is obvious
that coming from one country to work for the day at a place of business in another
country and thereafter returning to one’s permanent residence in the evening, is not
tantamount to making a temporary stay in the sense of establishing even a temporary
residence in the country where the business enterprise is situated[18].
Finally, note that the Canada – U.S. Income Tax Convention[19] must be referred to in order
to determine the residence of an individual who has sojourned in Canada more than 183 days
who is also an American citizen. In the Wolf[20] case, it was held that the taxpayer had dual
residency—in Canada under the presumption of residence in paragraph 250(1)a) of the I.T.A.,
and in the United States, and that he had a permanent home in both countries. The Court had
to analyse the taxpayer’s personal and economic ties in order to determine, as required by
subsection 2(a) of Article IV of the Canada – U.S. Income Tax Convention, with which
country those ties were the closest.
It is interesting to note that the factors examined to determine the personal and economic ties of
a taxpayer with either countries which are party to the Convention are similar to those used by
Canadian courts in a domestic context, as the following analysis by Lamarre J. demonstrates:
I am of the view that the appellant had a permanent home available to him in both
countries. Indeed, he had a place to stay in Canada and with only one month’s notice
he could return to his condo in Florida. However, I find that the appellant’s centre of
vital interests was more in the United States than in Canada. The appellant is not
married, but still, all his family was in the United States. His bank accounts and savings
and his stockbroker were all in the United States. Apart from one bank account and
one credit card which he had here in Canada for his day-to-day living expenses, the
appellant did not maintain any economic relations with Canada. He obtained his patent
in the United States and wired all his savings to the United States. The United States
was the country to which he returned with frequency and regularity. Although the
appellant’s place of work was in Canada, I do not think that this overrides the fact that
his centre of vital interests remained in the United States. He came to Canada to work
on a temporary basis because the job was here. His contract was in fact extended, but
this does not mean however that his personal and economic relations were with
Canada. His source of income was in Canada but there were no other ties to this
country. In fact, the way he acted shows rather that it was never his intention to stay
permanently in Canada or to have an habitual abode here. He never really settled in
Canada. He spent all his free time with his family in the United States, took out all his
insurance in the United States, was not insured here in Canada, and only kept here a
pied-à-terre, a room in Dollard-des-Ormeaux (Quebec). He never requested landed
immigrant status nor Canadian citizenship. He is an American citizen and has an
American passport only. He declared his world income and paid his income tax in the
United States for all the years in question. This is sufficient for me to be able to say that
the appellant is deemed to be a resident of the United States within the meaning of
paragraph 2 of article IV of Canada-U.S. Income Tax Convention.[21]
Although this case arose in Quebec, the judge ignored the notion of residence in the C.C.Q.,
using instead the tests developed by the common law precedents.
1.1.3 ADMINISTRATIVE POSITIONS – INTERPRETATION
BULLETIN IT-221R3
In Interpretation Bulletin IT-221R3[22], the CCRA sets forth the factors which will be taken
into consideration in determining whether or not the individual remains a resident of Canada for
tax purposes while abroad, including:
a) residential ties within Canada;
b) evidence of intention to permanently sever residential ties with Canada;
c) regularity and length of visits to Canada;
d) residential ties elsewhere; and
e) the permanence and purpose of stay abroad.
This Interpretation Bulletin was revised as of February 28, 2002. In its prior version, the
federal tax authorities assumed that, where a Canadian resident was absent from Canada for
less than two years, he was presumed to have retained his residence status while abroad, unless
he could clearly establish that he has severed all residential ties upon leaving Canada. On the
other hand, where an individual was absent from Canada for two years or longer, he was
presumed to have become a non-resident of Canada, provided that he has not maintained
significant ties to Canada which would have made him a resident despite his physical absence.
These presumptions were only administrative presumptions and, as such, did not have force of
law. Furthermore, nothing could be found in the established case law to support this position..
The new version of the interpretation bulletin eliminates this two-year presumption and expands
in greater detail on the factors that will influence the residence status of an individual, as
developed by the courts. We may thus conclude that the new version of IT-221R3 generally
constitutes a better summary of the principles developed by the case law.
1.2 THE CONCEPT OF RESIDENCE IN COMMON LAW
In private international law, the notion of residence is necessary to determine the legislative and
territorial jurisdiction applicable to an individual. Residence is primarily a connecting factor.
The concept of domicile is used in the common law as it is in Quebec civil law. The notion of
"habitual residence"[23] is also referred to.
Domicile may be defined as "a person's permanent home which requires the act of residence
and the intention to remain there permanently"[24]. Domicile essentially includes two elements,
"the fact of residence" and "the intention to stay there permanently or indefinitely"[25]. In
common law, residence is therefore only one element of domicile, meaning that domicile
requires more than mere physical presence. Intention is an important element in determining
domicile.[26]
Any act, event or circumstance in the life of an individual may be evidence from which
the state of his mind may be inferred with more or less precision; every aspect of his life,
his action and statements may be adduced. It is impossible to formulate any general rule
by which the weight due to any particular piece of evidence may be determined. Not
only does the strength of the evidence from which the intention may be inferred vary
according to the inherent probability or improbability of an alleged change of domicile,
but the importance of similar facts may differ absolutely in different cases… The
intention must be clearly and unequivocally proved.[27]
Although an individual may have more than one residence, he can only have one domicile.[28]
Accordingly, if a person owns several houses in different jurisdictions, his place of domicile will
be where his chief residence is found.[29] As for his existing domicile, it is deemed to continue
until it is proven that a new domicile has been acquired.[30] A person is deemed to have
abandoned a domicile, in a country for example, when he ceases to reside there and no longer
has the intention of residing there permanently.[31] Finally, litigation involving an individual’s
domicile may be settled by provincial law.[32] For example, Manitoba enacted the Domicile
and Habitual Residence Act, 1983 which essentially restates the principles set forth above.
Domicile and residence are two notions which should not be confused. Residence does not
require the intention to permanently remain in a place—it only requires physical presence. As
for domicile, an individual may remain domiciled in a place despite a prolonged absence if there
is a clear intention to return there. "Residence is necessary to domicile but domicile is not
necessary to residence."[33] An individual may also have more than one residence, but he will
never have more than one domicile. By analyzing the notions of domicile and residence in
common law, we will see that they are similar to the civil law principles we will discuss below.
1.3 THE CONCEPT OF RESIDENCE AS DEVELOPED BY STATUTE
LAW: IMMIGRATION LAW
The notion of residence is not foreign to the various branches of statute law which, in several
cases, gives its own definition based on the goals and policies behind the legislation.
Immigration law is one example where the legislator wanted to attach specific elements to the
notion of residence, as opposed to those found in the common law.
Under paragraph 5(1)c) of the Canadian Citizenship Act[34] the Minister grants citizenship to
any person who:
(c) has been lawfully admitted to Canada for permanent residence, has not ceased since
such admission to be a permanent resident pursuant to section 24 of the Immigration
Act, and has, within the four years immediately preceding the date of his application,
accumulated at least three years of residence in Canada calculated in the following
manner:
(i) for every day during which the person was resident in Canada before his lawful
admission to Canada for permanent residence the person shall be deemed to have
accumulated one-half of a day of residence, and
(ii) for every day during which the person was resident in Canada after his lawful
admission to Canada for permanent residence the person shall be deemed to have
accumulated one day of residence.
In immigration matters, residence therefore constitutes a condition for the granting of Canadian
citizen or refugee status. Nonetheless, even in immigration law, there is no set definition of
residence and the concept remains largely a question of fact. On the other hand, the notion of
residence for immigration purposes differs from the same concept in tax law, in that immigration
law emphasizes physical presence and the individual’s intention.
In Blaha v. Minister of Citizenship and Immigration[35], Rand J. confirmed that residence in
immigration law has a more limited meaning than "ordinary residence" in tax law:
In my opinion a person is resident in Canada, within the meaning of the Canadian Citizenship
Act only if he is physically present (at least usually) on Canadian territory. I feel that this
interpretation is in keeping with the spirit of the Act, which seems to require of the foreigner
wishing to acquire Canadian citizenship, not only that he possess certain civic and moral
qualifications, and intends to reside in Canada on a permanent basis, but also that he has
actually lived in Canada for an appreciable time. Parliament wishes by this means to ensure that
Canadian citizenship is granted only to persons who have shown they are capable of becoming
a part of our society.[36]
The Re Papadorgiorgakis[37] decision later eased the principle laid down by Rand J. that
physical presence was an indispensable element of residence for immigration purposes. The Re
Koo[38] case summarizes the state of immigration law involving residence in the following terms:
The conclusion I draw from the jurisprudence is that the test is whether it can be said
that Canada is the place where the applicant "regularly, normally or customarily lives".
Another formulation of the same test is whether Canada is the country in which he or
she has centralized his or her mode of existence. Questions that can be asked which
assist in such a determination are:
1) was the individual physically present in Canada for a long period prior to recent
absences which occurred immediately before the application for citizenship?
2) where are the applicant’s immediate family and dependants (and extended family)
resident?
3) does the pattern of physical presence in Canada indicate a returning home or
merely visiting the country?
4) what is the extent of the physical absences—if an applicant is only a few days
short of the 1,095-day total it is easier to find deemed residence that if those absences
are extensive?
5) is the physical absence caused by a clearly temporary situation such as
employment as a missionary abroad, following a course of study abroad as a student,
accepting temporary employment abroad, accompanying a spouse who has accepted
temporary employment abroad?
6) what is the quality of the connection with Canada: is it more substantial than that
which exists with any other country?
[…] In my view to allow physical absence to be treated as residence within the country
for the purposes of obtaining citizenship, the quality of the person’s connection with this
country must demonstrate a primacy or priority of residence in Canada (a more
substantial connection with Canada than with any other place)[39].
However, physical presence is still the most relevant factor in determining residence for
immigration purposes. As Pinard J. stated in Canada (Minister of Citizenship and
Immigration) v. Lee[40]:
(…) actual presence in Canada remains the most relevant and crucial factor to be taken
into account for establishing whether or not a person was "resident" in Canada within
the meaning of the provision [paragraph 5(1)(c) of the Canadian Citizenship Act]. As I
have stated on many occasions, too long of an absence from Canada, albeit a
temporary one, during that minimum period of time is contrary to the spirit of the Act,
which already allows a person who has been lawfully admitted to Canada for permanent
residence not to reside in Canada during one of the four years immediately preceding
the date of that person's application for citizenship[41].
In the Koo[42] case, Reed J. drew a parallel between the notion of residence for tax purposes
and the notion of residence for immigration purposes:
The Thomson case, of course, dealt with tax matters. I am not convinced that the
quality of residence required to fulfil the requirements of the Citizenship Act admits a
similar interpretation. In my view to allow physical absence to be treated as residence
within the country for the purposes of obtaining citizenship, the quality of the person’s
connection with this country must demonstrate a primacy or priority of residence in
Canada (a more substantial connection with Canada than with any other place).[43]
The primacy of connection requirement is not found in the tax cases dealing with the issue of
residence, even where a taxpayer has been physically absent from the country for an extended
period.
Thus we see that, in immigration matters, the courts have emphasized the physical presence
factor. But in addition to physical presence is the issue of whether the person has centralized his
normal or ordinary mode of existence in Canada. As Noël J. stated in Lai v. Canada
(Minister of Citizenship and Immigration)[44]:
[i]n cases where physical absence is encountered during a statutory period, proof of
continued residence will require evidence as to the temporary nature of the absence, a
clear intent to return and the existence of sufficient factual ties with Canada to assert
residence in fact during the period [...] Where a businessman established Canada as his
place of abode by setting up his matrimonial home and family there, he is permitted to
travel within reason to earn a living[45].
The tax case law also supports the conclusion that the concept of residence for tax purposes
differs from the concept used in immigration law. In Lee v. MNR[46], the taxpayer was held to
be a resident for tax purposes although he only had visitor’s status under Canadian immigration
laws, because he had married a resident Canadian and he had sworn that he was not a non-
resident of Canada in order to obtain a mortgage guaranteeing the purchase of the family home
in Canada.
Even in immigration law, the notion of residence must be distinguished from the notion of
sojourn. In Aguilar v. Canada (Minister of Citizenship and Immigration)[47], Lemieux J.
held as follows:
[…] we could theoretically establish three major stages: being physically established in
a specific place for a long period—residing—where there is little physical movement;
being physically established in a specific place for a time and then leaving—sojourning;
and lastly, being physically established, in a temporary manner, for a short period of
time or for reasons beyond his or her control—transiting.[48]
Note that an individual sojourning in Canada may, under the statutory presumptions contained in
paragraph 250(1)(a) of the I.T.A., become a resident of Canada for tax purposes, whereas
sojourning in Canada does not imply residence for immigration purposes.
1.4 THE NOTIONS OF RESIDENCE AND DOMICILE IN QUEBEC CIVIL
LAW
1.4.1. THE NOTION OF RESIDENCE
Article 77 C.C.Q. states that:
The residence of a person is the place where he ordinarily resides; if a person has more
than one residence, his principal residence is considered in establishing his domicile.
The notion of residence preferred by the C.C.Q. is that of ordinary residence. The existence of
an ordinary residence requires a certain degree of stability, and thus requires more than merely
living in a place—it implies an element of frequency, or routine, and differs from a brief or
occasional visit. For example, it covers a summer or secondary residence as opposed to the
renting of a chalet or cottage for a temporary period[49].
According to Deleury and Goubau, the notion of residence is less abstract and more realistic
than that of domicile, since domicile is a legal relation and residence is a pure question of
fact.[50] Thus, where an individual’s domicile cannot be determined with certainty, section 78
paragraph 1 C.C.Q. states that residence will be used as his deemed domicile.[51]
The concepts of residence and domicile should not, however, be confused. Residence is only a
component of domicile.[52] Also, residence alone does not have the effect of legal
centralization which domicile produces. The notion of residence, within the meaning of the
C.C.Q., is mainly used to determine objective ties, which constitute one of the prerequisites to
identifying an individual’s domicile.
Note, however, the increased importance given to the notion of residence since the coming into
force of the C.C.Q. :
[Translation] At times, residence is seen as a reference competing with domicile. This
occurs especially in private international law, where residence, along with domicile,
forms the basis for the international jurisdiction of Quebec courts. It can also happen
that the law makes it produce its own effects. Thus, in matters of divorce, residence
determines the jurisdiction of the courts. In matters of conflict of laws, the Code gives it
an independent role as a connecting factor[53].
It is interesting to note that, in Droit de la famille 2617[54], a divorce case, the Superior Court
referred to the concept of ordinary residence in federal tax law and in the common law to hold
that the tests for determining residence within the meaning of the C.C.Q. are similar to the tests
developed by the common law, [Translation] "since, in this field as in many others, our Courts
look to English law to interpret the provisions of the Code"[55]. Thus, for example, the Court
refers to the Adderson v. Adderson case[56], which held that:
[...] the term "habitual residence" refers to the quality of residence. Duration may be a
factor depending on the circumstances. It requires an animus less than that required for
domicile; it is a midpoint between domicile and residence, importing somewhat more
durable ties than the latter term."[57]
Note also that Sénécal J. assimilates the notion of residenceintroduced by the coming into force
of the C.C.Q. with that of ordinary residence in income tax law as follows:
[Translation] The rules relating to domicile have been greatly eased by the Civil Code
of Quebec which came into force on July 1, 1994. Domicile tends now to be confused
with residence more than it did, among other things, by the adoption of presumptions
which distinguish between domicile and residence or the place a person is found (art. 78
C.C.Q.). Furthermore, the addition of the notion of "ordinarily" to that of residence has
also made the concepts of domicile and residence more similar. That being said,
domicile and residence clearly remain two separate notions in the Code which should
not be confused. They do not cover the same thing, and one is broader than the
other.[58]
1.4.2.THE NOTION OF DOMICILE
At first glance, a discussion on the notion of domicile might appear unnecessary or superfluous
because the term is not used in income tax law. However, a review of the notion of domicile
reveals that this concept, which at first appears to be a purely civil one, becomes paramount in
light of the tendency to use the taxpayer’s intention as a major factor in determining residence in
tax matters.
The C.C.Q.,at article 77, reiterates the principle of the plurality of residences. On the other
hand, an individual can only have one domicile. The C.C.Q. does not clearly define domicile,
but, at article 75, it provides that "[t]he domicile of a person, for the exercise of his civil rights, is
at the place of his principal establishment".
Note that article 75 C.C.Q. does not use the term "ordinary residence" but "principal
establishment", which indicates that factors other than residence will be taken into consideration
to determine domicile. In this respect, article 76 C.C.Q. states that "Change of domicile is
effected by actual residence in another place coupled with the intention of the person to make it
the seat of his principal establishment". The notion of domicile therefore relates not only to an
objective factual element, residence, but also to a subjective intentional element.[59] Note here
the similarity with the concept of domicile in common lawanalysed above.
Although ordinary residence at times coincides with the notion of domicile, domicile includes a
much more pronounced element of fixity, due in part to the fact that the determination of
domicile has legal consequences which could have significant repercussions on an individual’s
life. Domicile is used to link people to a specific jurisdiction for the exercise of civil rights and
the settlement of patrimonial interests. As Deleury and Goubau point out:
[Translation] Where a person divides his life between several places, for the purposes
of determining domicile, the courts will consider the place he frequents ordinarily, that is,
the place where he spends the most time. A person may in fact habitually frequent
another place, but effectively stay there less time, or frequent it on a seasonal basis
(summer residence, secondary residence). In some cases, residence, as a factual
element, allows us to determine domicile[60].
Domicile is thus certainly more fixed, more stable and more durable than residence. It is not
enough to have objective ties (a home, physical presence, economic and family ties, etc.) to
have one’s domicile in a given place, although those objective elements allow us to infer a
person’s intention to establish his residence in that place. On the other hand, a person’s mere
intention to establish his residence in a place without objective proof of residence will not be
sufficient to establish domicile. Note that the establishment of a family residence is not in and of
itself conclusive, despite the fact that it constitutes an important step supporting the domicile
argument.[61]
The elements of intention and free choice which characterize the notion of domicile allow a
person to retain his domicile despite a more or less prolonged absence, as long as it is unclear
that he has voluntarily established his domicile elsewhere and abandoned his previous domicile.
On the other hand, it is quite possible for a person to involuntarily acquire a new residence
provided the objective elements required to infer residence are sufficiently present in the new
jurisdiction.
In conclusion, it is useful to say a few words on the use of domicile with respect to the exercise
of civil rights, which is based on three main functions. First, domicile is a test linking an
individual to a territorial jurisdiction. The exercise of civil rights sometimes requires the
intervention of an authority and, for reasons of efficiency and sound administration, jurisdiction is
determined according to territory. Using domicile thus allows us to determine to which
authorities a person can turn to exercise his civil rights. [Translation] "Domicile determines the
place where the legal operations which are necessary to settle or liquidate a person’s monetary
interests are centralized; those operations generally involve the intervention of legal authorities on
a non-contentious basis.[62]"
Second, as we mentioned above, domicile is a factor attaching a person to a legislative
jurisdiction. Thus, where a case includes extraneous elements, we must ask which legal system
will be able to decide it. In that case, the applicable law must be determined. In cases involving
personal status and estates, domicile is the factor which determines legislative jurisdiction in
Quebec private international law.
Finally, domicile constitutes the place of permanent presence, which facilitates the exercise by
third parties of their rights against the holder of the domicile. Domicile is where proceedings are
served, if they cannot be handed to the person.[63] Performance of an obligation must also take
place at the debtor’s domicile.[64]

1.5 OTHER TAX LAWS
1.5.1 EXCISE TAX ACT
1.5.1.1 THE NOTION OF RESIDENCE
The interpretation of residence in the Excise Tax Act[65] does not appear to differ from that
under the I.T.A.. Therefore, in cases where the presumptions described below are not
applicable, a person will be considered to reside or not to reside in Canada according to the
criteria developed under the I.T.A.. Note that, far from excluding the application of the
principles developed under the I.T.A., the E.T.A. expressly states, at paragraph 132(1)d), that:
(1) For the purposes of this Part, a person shall be deemed to be resident in
Canada at any time
(d) in the case of an individual, if the individual is deemed under any of paragraphs
250(1)(b) t (f) of the I.T.A. to be resident in Canada at that time.
We can thus infer from such an explicit reference to the I.T.A. that Parliament wishes to make
the notion of residence for income tax purposes corresponds to that for consumption tax
purposes. The case law developed under the I.T.A. is therefore relevant in interpreting the
provisions of the E.T.A. relating to residence, provided the specific presumptions of residence
set forth in the E.T.A. do not apply.
1.5.1.2 SPECIFIC PRESUMPTIONS IN THE E.T.A.
Apart from the reference to statutory presumptions in the I.T.A., the E.T.A. contains a series of
presumptions involving residence and non-residence which are specific to it. Subsections
132(2) and 132(3) read as follows:
Permanent establishment of non-resident
(2) For the purposes of this Part, where a non-resident person has a permanent
establishment in Canada, the person shall be deemed to be resident in Canada in
respect of, but only in respect of, activities of the person carried on through that
establishment.
Permanent establishment of resident
(3) For the purposes of this Part, where a person who is resident in Canada has a
permanent establishment in a country other than Canada, the person shall be deemed to
be a non-resident person in respect of, but only in respect of, activities of the person
carried on through that establishment.
In order to understand the rationale behind these presumptions, we must examine the tax policy
behind the E.T.A. on one hand and the I.T.A. on the other. The purpose of the I.T.A. is to tax
the world-wide income of any person who resides in Canada, whereas the E.T.A. involves a
consumption tax and its purpose is to tax any commercial transaction that has some sufficient
nexus to Canada.
The purpose of the presumptions in subsections 132(2) and 132(3) is thus either to subject to
the goods and services tax ("GST") the transactions of a non-resident which have a particular
connection with Canada, or to exempt from GST transactions of a Canadian resident which
lack a particular connection with Canada. Note that the fact that a transaction is not subject to
the GST does not necessarily mean that the person who carried out the transaction will not be
taxed in Canada on the income generated by it, since the presumptions in the E.T.A. purport to
subject to GST the transaction itself, whereas the I.T.A. purports to subject to income tax the
Canadian-resident taxpayer who earns income, regardless of its source.
1.5.2 AN ACT RESPECTING THE QUEBEC SALES TAX[66]
The Act respecting the Québec Sales Tax states at subsection 11(4) that an individual is
deemed to be resident in Quebec for the purposes of the Q.S.T.A. if the individual is deemed
under any of paragraphs b) to f) of section 8 of the Taxation Act to be resident in Quebec at
that time.[67]
Presumptions similar to those in subsections 132(2) and (3) of the E.T.A. are found in sections
11.1.1 and 13 of the Q.S.T.A. An additional presumption appears in section 14.1, which states
that:
A person not resident in Quebec is deemed to be resident in Canada at any time if the
person is deemed to be resident in Canada at that time under the Excise Tax Act.
The Q.S.T.A. therefore substantially reproduces the provisions of its federal counterpart and
even incorporates the provisions of the E.T.A. by reference. In addition, in a way similar to that
adopted by the federal legislation, the Q.S.T.A. refers to the provisions of the Q.T.A. relating to
certain presumptions of residence, which leads us to believe that the principles developed by the
courts under the Taxation Act should also be used to determine the residence of individuals
under the Q.S.T.A. where the presumptions of sections 11.1.1 and 13 of the Q.S.T.A. do not
apply.
1.5.3 THE TAXATION ACT
The Q.T.A. describes the concept of residence in a manner similar to that used in the I.T.A.. In
addition, the Quebec case law on residence for tax purposes has been developed in conjunction
with the common law case law, with the difference that the Quebec case law seems to give
more weight to the taxpayer’s intention as a criterion to determine residence.
It is interesting to note that, in taxation matters, Quebec courts generally use the tests developed
by common law courts to determine an individual’s place of residence under the Q.T.A.. Even
more interesting is the fact that the Court of Appeal of Quebec expressly stated, in Roy v.
S.M.R.Q.[68], that the taxpayer’s intention constituted a relevant element in determining his
residence.
The administrative pronouncements of the ministère du Revenu du Québec (hereinafter "the
Ministère") also tend to introduce the criterion of intention in analysing the elements relevant to
the determination of residence.
In Interpretation Bulletin IMP.22-3/R1[69], the Ministère expressly mentions the intention to
return to Canada at the end of a stay abroad as a factor in determining whether a taxpayer
maintained his residence during his absence. Section 11 of IMP.22-3/R1 states the following:
Anticipated Return to Quebec at the end of the stay
11. Where an individual leaves Canada, even for a period of two years or more, and
the facts prove that his return to Quebec is anticipated at the end of his stay away from
Canada, this factor together with other existent residential ties given in this bulletin must
be examined to determine whether, taken as a whole, they are significant enough to
conclude that that individual is not definitely severing his residential ties within Québec.
The Ministère considers that the following facts, in particular, may determine that a return to
Quebec is anticipated:
* the individual carries on, away from Canada, specified work of limited duration (bridge
constuction – installation of prefabricated houses – telephone net-work, etc.);
* the individual performs his services under a contract of limited duration in which his
return to Québec is foreseen;
* the individual reserves the right to return to Québec or his employer reserves the right to
call him back;
* the individual has the assurance of resuming his functions with his employer upon
returning to Québec or of being employed therein.
Contrary to the statements of the federal tax authorities in Interpretation Bulletin IT-
221R3[70], the Ministère does not provide for an administrative presumption as to the length
of a taxpayer’s stay abroad. The two-year test found in Interpretation Bulletin IT-221R3[71]
is expressly rejected by the Ministère, which could give rise to the strange situation in which a
person is considered to be a non-resident by the federal tax authorities and a resident for the
purpose of taxation in Quebec.
2 COMPARISON BETWEEN THE NOTIONS OF RESIDENCE AND DOMICILE
IN QUEBEC CIVIL LAW AND THE NOTION OF RESIDENCE FOR TAX
PURPOSES
At first glance, the concepts of residence in civil law and in tax law may appear to be similar. A
closer look, however, reveals that the notion of residence found in the C.C.Q. implies a more
volatile element than the notion of residence for tax purposes. It appears to be easier for an
individual to abandon his residence within the meaning of the C.C.Q. than to become a non-
resident within the meaning of tax legislation.
This is due in part to the fact that the notion of residence in the C.C.Q. seems to give more
importance to physical presence. In fact, physical presence seems to be a determining factor
under the C.C.Q., whereas the tax jurisprudence has clearly established that physical presence
in a place is not in and of itself indicative of residence. Finally, the tendency to bring intention
into the notion of residence for tax purposes, both in the jurisprudence and administratively, has
contributed to the dissociation of the notion of residence in civil law from the notion of residence
in tax law .
Although certain decisions appear as an attempt to dissociate the notion of residence from any
intentional element[72], other decisions as well as the administrative pronouncements of the tax
authorities have introduced a subjective element into the analysis of the notion of residence[73].
It is interesting to note that the Quebec courts have, in tax matters, generally used the criteria
developed by the common law courts to determine an individual’s residence under the Q.T.A.,
while placing a particular importance on the taxpayer’s intention as a relevant element in
determining residence.
In Touchette v. Quebec (Sous-ministre du Revenu), Desmarais J. stated the following:
[Translation] Canadian and Quebec case law has established certain benchmarks such
as past and present habits of life, the regularity and length of visits to the home country,
the maintenance of the original home, former and new ties and the intention to establish
oneself in the new country. These criteria do not necessarily have to be found in each
case.
The Court has also considered other cases from common law countries[74].
In addition, in the Roy case, Crête J. of the Court of Appeal of Québec used the criteria
developed by common law courts to define the notion of residence:
[Translation] In the absence of definitions, courts have defined the notion of residence
for individuals. On this point, we may refer to the following authorities, among others:
THOMSON v. MNR – (1946) S.C.R. 209.
SCHUJAHN v. MNR – (1962) 328, Exchequer Court of Canada.
THE QUEEN v. REEDER – (1975) D.T.C. vol. 29, p. 5160[75].
And further on he states:
[Translation] Among the factors to consider, the Reeder case mentions the following:
a)The taxpayer’s past and present habits of life;
b) The regularity and length of visits of the taxpayer in the jurisdiction asserting
residence;
c) The taxpayer’s ties within that jurisdiction;
d) The taxpayer’s ties elsewhere; and
e) The taxpayer’s permanence of stay abroad."
We may also take into account the taxpayer’s intentions and the reasons which have led to his
stay abroad.[76]
If the civil law notion of residence is not the mirror image of the notion of residence for tax
purposes, neither can domicile be equated to residence for tax purposes, notwithstanding the
intentional element which seems to bring the two concepts together, if only because an individual
can only have one domicile, whereas it has been established by the case law that an individual
may reside in several places for tax purposes. Furthermore, the acquisition of a domicile
requires a degree of fixity greater than that required for the acquisition of residence for tax
purposes. In fact, in order to identify an individual’s domicile, not only must the establishment of
residential ties and the intention to establish such ties in the new chosen jurisdiction be
demonstrated, there must also be evidence that the previous domicile has been abandoned,
whereas the establishment of a new residence for tax purposes does not require proof of the
abandonment of the previous residence.
Residence for tax purposes therefore seems to be situated mid-way between the notion of
residence and the notion of domicile under the C.C.Q.. One could even say that the
introduction of an intentional element into the fiscal residence test, especially in the provincial tax
jurisprudence, contributes to distancing the notion of residence for tax purposes from the notion
of residence for civil law purposes and bring it closer to the notion of domicile.
3 RECOMMENDATIONS
Introduced in 1994, section 7.14 of the Q.T.A. provides: "[t]he application of this Act and the
regulations is not affected by article 77 of the Civil Code of Québec as regards the
determination of whether or not a person is resident in Quebec, in Canada or elsewhere."
The Touchette[77] decision was rendered in 1996 after section 7.14 of the Q.T.A. came into
force. In that case, the Court of Quebec not only reaffirmed the reciprocity of federal tax law
and provincial tax law, it also considered case law from other common law countries.
An individual’s residence constitutes a preferred criteria for connecting him to a jurisdiction.
This is why several federal and provincial statutes – we have, as an example, examined the
notion of residence in immigration law – use the criteria of residence to determine the rights,
privileges, duties and liabilities of individuals with significant ties to their jurisdiction.
The dichotomy that exists between the notion of residence in tax law and in civil law is also
found among the different branches of common law. The notion of residence is generally not
defined in laws using this factor to connect a person to a jurisdiction. The absence of a
definition is, however, not surprising. The multiplicity of factual elements that underlie the notion
of residence as well as the different weight to be given to these elements based on the legislative
policy behind each legislation make it difficult to give a precise and exhaustive definition of
residence without the risk of giving the concept of residence a rigidity which is incompatible with
the reality of a modern society in which people are required to move and establish ties in several
jurisdictions. The very nature of the concept of residence thus requires a versatile and
adaptable interpretation based on the goal that a particular statute is intended to achieve.
In tax law, the legislator has at times chosen to create specific presumptions when necessary,
with a view to adapting each legislative text to a specific goal. The specific presumptions found
in the E.T.A. and the Q.S.T.A. are examples of this. These statutory presumptions allow us to
accommodate the differences in legislative policy, while keeping as a foundation the same notion
of residence for income tax and consumption tax purposes.
We have demonstrated that neither the notion of residence nor the notion of domicile as defined
in the C.C.Q. completely correspond to the concept of residence for tax purposes as it is
interpreted by the tax case law inspired by the common law. Accordingly, there is a
dissociation between federal tax law and the C.C.Q. regarding the notion of residence.
In paragraph 2 of the Preliminary Provision, the C.C.Q. sets forth the private law of the
province. Where the tax legislation is incomplete, the courts called upon to render decisions on
tax matters must refer to it[78]. According to Jean-Maurice Brisson:
[Translation] Indeed, whenever a federal statute that is to be applied to Quebec resorts
to a private law concept without defining it, and the Interpretation Act is likewise
silent, or the federal statute does not fully occupy the possible field of private law
jurisdiction in question, it is the Civil Code that supplies the necessary conceptual
support for an intelligent application of that statute. The implicit dependency of federal
legislation is therefore by far the situation that is most widespread.[79]
However, even the Quebec courts, when interpreting the notion of residence for tax purposes
under the Q.T.A., have used the common law tests that underlie the interpretation of federal tax
laws. Referring to the C.C.Q. to determine an individual’s residence for tax purposes would
lead to unjustifiable differences of treatment among Canadian taxpayers based on their province
of residence. As Jean-Maurice Brisson states:
[Translation] In tax matters, considerations of equality of taxpayers before the tax
department may lead the legislator to give some legal notions an endorsement which
does not coincide with provincial law.[80]
Such a remark clearly illustrates the situation we find ourselves in when we analyse the notion of
residence for tax purposes, which not only differs from the notion of residence and domicile
under the C.C.Q., but also from the notion of residence used in the other branches of common
law and statutory law.
In tax law cases, Canadian courts have generally understood and uniformly applied the
principles of residence for tax purposes developed in the federal tax case law.
The harmonization bill entitled A First Act to harmonize federal law with the civil law of the
Province of Quebec and to amend certain Acts in order to ensure that each language
version takes into account the common law and the civil law was tabled on May 11,
2000. One of the main components of the bill is an amendment to the federal Interpretation
Act[81]. The amendment consists of adding provisions that recognize the coexistence of two
Canadian legal traditions (civil law in Quebec and common law in the other provinces) and that
confirm the need to refer to provincial law when applying a public and private federal law.[82]
Accordingly, where a federal law does not define a private law term, we must turn to the private
law in force in the province in which the case arises.
This rule had already been stated by the author Brisson[83] and was reiterated in St-Hilaire v.
Canada (Attorney General)[84]. The issue in that case was whether the meaning of the
words "surviving spouse" and "succession" in the federal Public Service Superannuation
Act[85] should be interpreted in light of the C.C.Q. or the common law where the law is silent.
Article 620 of the C.C.Q. states that "a person convicted of making an attempt on the life of the
deceased" is "unworthy of inheriting by operation of law". Décary J., dissenting in part, made
the following comment with respect to the complementarity between a federal law and the
C.C.Q. where a case arises in Quebec:
It is the Constitution of Canada itself which provides that some federal laws have
differing effects according to whether they are applied in Quebec or in the other
provinces. By guaranteeing the perpetuity of the civil law in Quebec and encouraging in
section 94 the uniformization of the laws of provinces other than Quebec relative to
property and civil rights, the Constitution Act, 1867 enshrines in Canada the federal
principle that a federal law that resorts to an external source of private law will not
necessarily apply uniformly throughout the country. To associate systematically all
federal legislation with common law is to ignore the Constitution.
A judge who must interpret and apply a federal enactment in a dispute concerning civil rights in
Quebec must know that as a general rule, and subject to what will be said later in regard to so-
called public law statutes, the suppletive law is the civil law. This does not mean that no attempt
should be made to harmonize the effects of federal statutes throughout the country wherever this
is possible in the private law. (See: Canada v. Construction Bérou (1999), 251 N.R. 115
(F.C.A.); Biderman v. Canada (2000), 253 N.R. 236 (F.C.A.).) What it does mean is that
asymmetry is the rule under the Constitution. It also means that if there is harmonization, it may
draw equally on both the civil law and the common law.
A Quebec litigant involved in an action pertaining to his civil rights under a federal enactment
that is silent in this regard is entitled to expect that his civil rights will be defined by the Quebec
civil law, even if the adverse party is the federal government. As Professor Morel clearly states,
in "Harmonizing Federal Legislation with the Civil Code of Québec: Why and Wherefore?", a
study published in the Department of Justice Canada collection (supra, paragraph 39):
The complementarity of federal private law legislation with Quebec civil law -- as with
the basic law of every province -- is the rule both in principle and, if only because
Parliament rarely interferes with it, in practice. (p. 17)
For a more systematic application, Parliament seems to have felt the need to codify this rule of
interpretation. Accordingly, the federal Interpretation Act contains the following provision:
Art. 8.1 Both the common law and the civil law are equally authoritative and recognized
sources of the law of property and civil rights in Canada and, unless otherwise provided
by law, if in interpreting an enactment it is necessary to refer to a province's rules,
principles or concepts forming part of the law of property and civil rights, reference
must be made to the rules, principles and concepts in force in the province at the time
the enactment is being applied.
There is no doubt that the I.T.A. is a public order statute.[86]
In the St-Hilaire decision, Décary J. states that principles of private law, in civil law or common
law, may be used when applying a public law with regard to a notion of private or public law:
What, in my view, should determine whether or not it is necessary to resort to the private law (in
Quebec, the civil law) is not the public or private nature of the federal enactment at issue but the
fact, quite simply, that the federal enactment in a given case must be applied to situations or
relationships that it has not defined and that cannot be defined other than in terms of the persons
affected. In some ways the circle is closed and we come back to the point of departure, in
section VIII of the Quebec Act: when these affected persons are litigants and their civil rights
are in dispute and have not been defined by Parliament, it is the private law of the province that
fills the void. In short, the civil law applies in Quebec to any federal legislation that does not
exclude it.[87]
As the definition of residence in the I.T.A. is incomplete, the Interpretation Act henceforth
requires the interpreter to refer to the notion of residence in civil law or common law, depending
on the source of the litigation. In this case, although the notion seems to be similar in both
systems, they have certain differences. There is therefore a risk that taxpayers from different
provinces will be treated differently.
Furthermore, residence in tax law and in common law do not have the same objectives, which
may create problems if the private law tests are used in a tax law context.
As a precautionary measure, we are of the opinion that one way Parliament could intervene
would be to adopt an explicit derogatory clause in the I.T.A., similar to section 7.14 of the
Q.T.A., which excludes the application of article 77 C.C.Q.. We are not suggesting, however,
the exclusion of the application of the C.C.Q. in its entirety, to avoid creating a legal vacuum in
cases where a legal dispute is difficult to resolve.
However, in light of the foregoing analysis, we must face the fact that it would not be practical
or desirable, or even possible, to codify the definition of residence for tax purposes.

BIBLIOGRAPHY
LEGISLATION
Civil Code of Lower Canada
Civil Code of Québec, S.Q. 1991, c.64.
Income Tax Act, R.S.C. (1985), 5th Supp., c.1 as amended.
Taxation Act, R.S.Q., c. I-3 as amended.
Excise Tax Act, R.SC. (1985), c.E-15 as amended.
An Act respecting the Quebec Sales Tax Act, R.S.Q., c.T-01 as amended.
Interpretation Act, R.S.C., c. I-23.

GOVERNMENT DOCUMENTS
QUEBEC, Ministère de la Justice, Commentaires du ministre de la Justice. Le Code civil
du Québec, Volume 1. Québec: Publications du Québec, 1993.
CANADA CUSTOMS AND REVENUE AGENCY, Interpretation Bulletin IT-221R3,
"Determination of an Individual's Residence Status", December 21, 2001, this Interpretation
Bulletin was revised as of February 28, 2002.
REVENU QUÉBEC, Bulletin d'interprétation IMP.22-3/R1, "Determination of residence of
an individual who leaves Québec and Canada", July 31, 1990.
REVENU QUÉBEC, Bulletin d'interprétation IMP.8-3, "Deemed Residence", July 31,
1990.

JURISPRUDENCE
Thomson v. MNR, [1946] C.T.C. 51 (S.C.C.).
Beament v. MNR, [1952] C.T.C. 327 (S.C.C.).
Schujahn v. MNR, [1962] C.T.C. 364 (E.C.).
Kallos v. MNR, 72 D.T.C. 1099 (T.R.B.).
Kirkby v. MNR, 72 D.T.C. 1109 (T.R.B.).
The Queen v. Reeder, [1975] C.T.C. 256 (F.C.).
Sous-Ministre du revenu du Québec v. Roy, [1979] R.D.F.Q. 37 (C.A.).
The Queen v. Bergelt, [1986] 1 C.T.C. 212 (F.C.).
Stephens v. MNR, 88 D.T.C. 1170 (T.C.C.).
Fisher v. The Queen, 95 D.T.C. 840 (T.C.C.).
Wassick v. MNR, 95 D.T.C. 19 (T.C.C.).
Touchette v. Québec (Sous-ministre du revenu), [1996] R.D.F.Q. 164 (C.Q.).
Therrien v. Pellerin, [1997] R.J.Q. 816 (C.A.).
Endres et al. v. The Queen, 98 D.T.C. 1101 (T.C.C.).
Boston v. The Queen, 98 D.T.C. 1124 (T.C.C.).
Wolf v. The Queen, No. 98-2647-IT-G (October 23, 2000) (T.C.C.).

MONOGRAPHS
Rijkele Betten, Income Tax Aspects of Emigration and Immigration of Individuals,
Amsterdam, IBDF Publications, 1998, chap. 4.
Luc Blanchette, La résidence des individus en droit fiscal canadien et québécois, Thesis
presented to the Faculty of Graduate Studies and Research, Comparative Law Institute, Faculty
of Law, McGill University, 1985.
Nathan BOIDMAN, L. Frank CHOPIN and Alan W. GRANWELL, The New U.S.
Residency Rules for Canadians: Tax Considerations, CCH Canadian, 1985, chap. 2.
Jean Carbonnier, Droit civil; 1- Les Personnes [civil law; 1 - Persons], Paris, Presses
Universitaires de France, 1996, pp. 83-99.
Edith Deleury and Dominique Goubau, Le droit des personnes physiques [the law of natural
persons], 2nd edition, Cowansville, Éd. Yvon Blais, 1997, chap. III.
Guy Lord, Jacques Sasseville and Diane Bruneau, Les principes de l’imposition au Canada
[principles of taxation in Canada], Montreal, Éd. Wilson & Lafleur, 1999, pp. 42-59.
Guide de l’Impôt canadien [Canada tax guide], 47th ed. 2000, Farnham, Publications CCH
Ltd.

PROFESSIONAL REVIEWS, SYMPOSIUMS AND CONFERENCES
Alain-François BISSON, "La Disposition préliminaire du Code Civil du Québec" [the
preliminary provision of the Civil Code of Québec], (1999), vol. 44, No. 1 McGill L.R. 539-
565.
Jean-Maurice BRISSON, "L’impact du Civil Code du Québec sur le droit fédéral: une
problématique" [the impact of the Civil Code of Québec on federal law: a problem] (1992),
vol. 52, C.B.R.345-361.
Jean-Maurice BRISSON and André MOREL, "Droit fédéral et droit civil: complémentarité,
dissociation" [federal and civil law: complementarity, dissociation], (1996), vol. 75, C.B.R.
297-332.
Peter A. Cumming, "Criteria for the linkage between the act subject to taxation and the
taxpayer (nationality, domicile or residence or source of taxation)", (1994) Droit
Contemporain 822-844.
Elise DUBÉ, "Notions de droit international privé", in Conference No. 5, September 93,
Montreal, Association de planification fiscale et financière, 1993, p. 5.
John V. HALPERN, "Residence or Domicile?: A state of mind" (1993), 41 Canadian Tax
Journal 129-134.
G. McGREGOR, "Domicile Tests for Residence" (1972), 20 Canadian Tax Journal 125-
127.
Pierre LESSARD and André MORISSETTE, "The New Civil Code of Québec", in 1993
Conference Report, Toronto, Canadian Tax Foundation, 1993, pp. 51:1-90.
André PARADIS, "Consequences fiscales de la Réforme du Code civil", in Congrès 92,
Montreal, Association de planification fiscale et financière, 1992, pp. 42-43.



* The author acknowledges with thanks the assistance of Julie Gaudreault-Martel (student-
at-law) in the researching and the writing of this paper.
[1] Civil Code of Québec, S.Q. 1991, c. 64 (hereinafter referred to as the "C.C.Q.").
[2] Income Tax Act, R.S.C. (1985), 5th Supp., c. 1 and mod. (hereinafter referred to as the
"I.T.A.").
[3] Taxation Act (Quebec), R.S.Q., c.I-3 (hereinafter referred to as the "Q.T.A.").
[4] Subsection 248(1) I.T.A.
[5] Subsection 250(3) I.T.A.
[6] Heather L. EVANS, "A Guide to the Residence of Individuals", in 1997 Ontario Tax
Conference, Toronto, Canadian Tax Foundation, 1997 at p. 9:4.
[7] Thomson v. M.N.R., 2 D.T.C. 684 (Exchequer Court), affirmed in 2 D.T.C. 812
(S.C.C.) at p. 815.
[8] Note that Min Shan Shin v. The Queen, 97-3044-IT-G, rendered on March 31, 2000
by Mogan J., refers to Thomson v. M.N.R., supra, note 7, and is based mainly on the following
two factors: "(i) "the spatial bounds within which he spends his life or to which his ordered or
customary living is related"; and (ii) "the degree to which a person in mind and fact settles into or
maintains or centralizes his ordinary mode of living with its accessories and social relations,
interest and conveniences"."
[9] Rogers v. I.R.C. (1897), 1 Tax Cas. 225 (Scot. Ct. of Ex.).
[10] Lloyd v. Sully (1884), 2 Tax Cas.37 (Scot. Ct. of Ex.).
[11] I.R.C. v. Lysaght, [1928] A.C. 234 (H.L.).
[12] Schujahn v. M.N.R., 62 D.T.C. 1225 (Exchequer Ct.).
[13] See Lee v. M.N.R., 90 D.T.C. 1014 (T.C.C.) and see also Hun Huh v. The Queen,
1999-2825(IT)I, rendered on August 17, 2000 in which Teskey J. described more than thirty
indicia relevant in determining where an individual is resident.
[14] Subsection 250(1) I.T.A. reads as follows:
For the purposes of this Act, a person shall, subject to subsection (2), be deemed to have been
resident in Canada throughout a taxation year if the person
(a) sojourned in Canada in the year for a period of, or periods the total of which is, 183
days or more;
(b) was, at any time in the year, a member of the Canadian Forces;
(c) was, at any time in the year,
(i) an ambassador, minister, high commissioner, officer or servant of Canada, or
(ii) an agent-general, officer or servant of a province,
and was resident in Canada immediately prior to appointment or employment by Canada or the
province or received representation allowances in respect of the year;
(d) performed services, at any time in the year, in a country other than Canada under a
prescribed international development assistance program of the Government of Canada and
was resident in Canada at any time in the 3 month period preceding the day on which those
services commenced;
(d.1) was, at any time in the year, a member of the overseas Canadian Forces school staff
who filed his or her return for the year on the basis that the person was resident in Canada
throughout the period during which the person was such a member;
(e) (Repealed by S.C. 1999, c. 22, s. 82(1)).
(f) was at any time in the year a child of, and dependent for support on, an individual to
whom paragraph (b), (c), (d) or (d.1) applies and the person's income for the year did not
exceed the amount used under paragraph (c) of the description of B in subsection 118(1) for
the year;
(g) was at any time in the year, under an agreement or a convention with one or more other
countries that has the force of law in Canada, entitled to an exemption from an income tax
otherwise payable in any of those countries in respect of income from any source (unless all or
substantially all of the person's income from all sources was not so exempt), because at that time
the person was related to or a member of the family of an individual (other than a trust) who
was resident in Canada.
[15] Thomson v. M.N.R., supra, note 7, p. 813.
[16] Stephens v. M.N.R., 88 D.T.C. 1170 (T.C.C.).
[17] See R & L Food Distributors Limited v. M.N.R., 77 D.T.C. 411 (T.C.C.)
[18] Id., at p. 413.
[19] Article IV of the Convention Between the Government of Canada and the Government
of the United States of America with Respect to Taxes on Income and on Capital (signed in
Washington, District of Columbia, on September 26, 1980 amended by the protocols signed on
June 14, 1983, March 28, 1984, March 17, 1995 and July 29, 1997) (the "Convention") states
the following with respect to the determination of an individual’s residence:

1. For the purposes of this Convention, the term "resident of a Contracting State"
means any person who, under the laws of that State, is liable to tax therein by reason of his
domicile, residence, place of management, place of incorporation or any other criterion of a
similar nature, but in the case of an estate or trust, only to the extent that income, derived by
such estate or trust is liable to tax in that State, either in its hands or in the hands of its
beneficiaries.



2. Where by reason of the provisions of paragraph 1 an individual is a resident of
both Contracting States, then his status shall be determined as follows:

(a) he shall be deemed to be a resident of the Contracting State in which he has a permanent
home available to him; if he has a permanent home available to him in both States or in neither
State, he shall be deemed to be a resident of the Contracting State with which his personal and
economic relations are closer (centre of vital interests);
(b) if the Contracting State in which he has his centre of vital interests cannot be determined,
he shall be deemed to be a resident of the Contracting State in which he has an habitual abode;
(c) if he has an habitual abode in both States or in neither State, he shall be deemed to be a
resident of the Contracting State of which he is a citizen; and
(d) if he is a citizen of both States or of neither of them, the competent authorities of the
Contracting States shall settle the question by mutual agreement.
[20] Lawrence Wolf v. The Queen, 98-2647-IT-G, rendered on August 28, 2000 by
Lamarre J.
[21] Id., at par. 20.
[22] CANADA CUSTOMS AND REVENUE AGENCY, Interpretation Bulletin IT-
221R3, "Determination of an Individual's Residence Status", December 21, 2001, this
Interpretation Bulletin was revised as of February 28, 2002.
[23] This concept is frequently used in international treaties.
[24] Marvin BAER et al., Private International Law in Common Law Canada, Cases,
Text and Materials, (Toronto: Edmond Montgomery Publications Ltd.), 1997, at p. 121.
[25] Id., p. 124
[26] It was held in Bell v. Kennedy (1868), LR 1 Sc. & Div. 307, 319, that "if the intention
of permanently residing in a place exists, a residence in pursuance of that intention, however,
short, will establish a domicile".
[27] Jean-Gabriel Castel, Canadian Conflict of Laws, 2 ed., Toronto, Butterworhts, 1986,
at p. 82.
[28] Udny v. Udny (1869), LR 1 Sc. & Div. 441 (HL), at p. 448.
[29] Plummer v. IRC [1988] 1 All E.R. 97 (Ch. D.).
[30] Armstrong v. Armstrong (1971) 21 DLR (3d) 140 (Ont. HC), at p. 144.
[31] Albert Venn DICEY and John Humphrey MORRIS, The conflict of laws, 11th ed.,
London, Stevens & Sons, 1987, 147-148.
[32] C.C.S.M.C. D96
[33] Brian P. CASEY, "Residence of Individuals" (1991) 13 Revue de Planification fiscale
et successorale 627, 632.
[34] Citizenship Act, R.S.C. (1985), ch. C-29.
[35] Blaha v. Department of Citizenship and Immigration, [1971] F.C. 521. This case
refers to paragraph 5(1)b) of the Citizenship Act, R.S.C. 1970, c. C-19 which used the
expression "place of domicile".
[36] Id., at p. 524.
[37] Re Papadorgiorgakis, [1978] 2 F.C. 208 (C.A.). This appeal turned on whether or not
the appellant was resident in Canada within the meaning of the statute during periods spent at
the University of Massachusetts. Thurlow A.C.J. set forth the following rule at p. 214: "A
person with an established home of his own in which he lives does not cease to be resident there
when he leaves it for a temporary purpose whether on business or vacation or even to pursue a
course of study. The fact of his family remaining there while he is away may lend support for the
conclusion that he has not ceased to reside there. The conclusion may be reached, as well,
even though the absence may be more or less lengthy. It is also enhanced if he returns there
frequently when the opportunity to do so arises."
[38] Re Koo, [1993] 1 F.C. 286.
[39] Id., at p. 294, par. 11-12. In this case, the Court held that, although the purchase of
property, the holding of a driver’s licence or a health insurance card, etc. constitute indications
of residence, they are not enough. It must be demonstrated that a person has centralized his
mode of life in Canada.
[40] Canada (Minister of Citizenship and Immigration) v. Lee, F.C.T.D., T-1277-98.
[41] Id., par. 4. In that case, the Court held that, in addition to not having met the three-year
presence rule, the Lee family had kept its roots in Taiwan and that its mode of life was still
centralized there.
[42] Re Koo, supra, note 37 at p. 294.
[43] Id., at p. 294.
[44] Lai v. Canada (Minister of Citizenship and Immigration), (28 September 1994), T-
2258-93, F.C.T.D.
[45] Id. At paras. 6-7.
[46] Lee v. M.N.R., 90 D.T.C. 1014 (T.C.C.).
[47] Aguilar v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 20.
[48] Id., at p. 33. In that case, the Court established that the notion of sojourn must be
defined based on its usual meaning and that physical presence was essential. The Court held as
follows at p. 31: "Parliament’s intention is expressed not only in the ordinary meaning of the
expressions used, but also in the manner in which those expressions are understood in their
context. In writing subsection 49(1.1), Parliament has used the expressions "residing" and
"sojourning" to define who is denied an automatic stay. In my opinion, the internal consistency
of this subsection demands that we apply the same kind of dimensions to those expressions."
[49] Édith DELEURY and Dominique GOUBAU, Le droit des personnes physiques, 2nd
ed., Cowansville, Yvon Blais, 1997, at p. 255.
[50] Id., at p. 256.
[51] In Dionne v. Ligue de développement du hockey midget AAA du Québec inc., J.E.
95-1855, art. 78 C.C.Q. was applied to determine that the residence of the mother of the
young hockey player was in Ste-Foy [Translation] "and that, since it was not established with
certainty that she intends to make it her principal establishment, she is deemed to be domiciled
in Ste-Foy and it is there that the Court must find that she ostensibly is domiciled.".
[52] Édith DELEURY and Dominique GOUBAU, op. cit., note 48, at p. 256.
[53] Id., at pp. 262 and 263.
[54] Droit de la famille-2617, [1997] R.J.Q. 1011.
[55] É. DELEURY and D. GOUBAU, op. cit., note 48, at p. 271.
[56] Adderson v. Adderson (1987), 36 D.L.R. (4th ) 631 (Alta. CA).
[57] Id., at p. 636.
[58] Droit de la famille-2617, supra, note 53 at p. 1013.
[59] In Droit de la famille - 2223, [1995] R.J.Q. 1792, the Superior Court held, in an action
for separation from bed and board, that the wife had proved the change of domicile by a firm
intention to establish her residence in St-Joseph-de-Beauce and that art. 76 C.C.Q. should be
applied. See also Feltrinelli v. Barzini, [1992] R.J.Q. 1525 regarding change of domicile.
That case was decided under the Civil Code of Lower Canada.
[60] É. DELEURY and D. GOUBAU, op. cit., note 48, at p. 262.
[61] Droit de la famille - 2032, [1994] R.J.Q. 2218.
[62] É. DELEURY and D. GOUBAU, op. cit., note 48, at p. 258.
[63] Art. 123, par. 2 Code of Civil Procedure.
[64] É. DELEURY and D. GOUBAU, op. cit., note 48, at p. 259.
[65] Excise Tax Act, R.S.C. (1985), c. E-15 (hereinafter referred to as the "E.T.A.").
[66] An Act respecting the Québec Sales Tax, R.S.Q., c. T-0.1, (hereinafter referred to as
the "Q.S.T.A.").
[67] Article 8 of the Q.T.A. states as follows:

An individual is deemed to have been resident in Québec throughout a taxation year if, at any
time in the year, the individual

(a) sojourned in Québec for a period of, or periods the total of which is, 183 days or more
and was ordinarily resident outside Canada;
(b) was a member of the Canadian Armed Forces and was resident in Québec immediately
before leaving Canada on military service in a foreign country;
(c) was an ambassador, Member of Parliament, officer, high commissioner, minister, servant
or senator of Canada, or an agent-general, officer or servant of a province, and was resident in
Québec immediately prior to election, employment or appointment by Canada or the province
or received representation allowances in respect of the year;
(d) performed services in a country other than Canada under a prescribed international
development assistance program of the Government of Québec or Canada and was resident in
Québec at any time in the six month period preceding the day on which those services
commenced;
(e) was the spouse of an individual to whom paragraph b, c or d applies living with that
individual and was resident in Québec in any previous year; or
(f) was a child of, and dependent for support on, an individual to whom paragraph b, c or d
applies and the child's income for the year did not exceed the amount in dollars referred to in the
portion of section 752.0.1 before paragraph a, that is used in computing the child's deduction
under that section.

[68] Roy v. S.M.R.Q., [1979] R.D.F.Q. 37 (C.A.). See also Lafrance v. S.M.R.Q., [1980]
R.D.F.Q. 25 (P.C.).
[69] MINISTÈRE DU REVENU DU QUÉBEC, Interpretation Bulletin IMP.22-3/R1,
"Determination of residence of an individual who leaves Québec and Canada", July 31, 1990.
[70] CANADA CUSTOMS AND REVENUE AGENCY, Interpretation Bulletin IT-
221R3, op. cit., note 22 at par. 9.
[71] Id., par. 4, 5 and 8.
[72] Noel J. in Schujahn v. M.N.R., supra, note 12, at p. 1227, dismissed the argument that
residence depends on the will of the taxpayer as follows:

It is quite a well settled principle in dealing with the question of residence that it is a question of
fact and consequently that the facts in each case must be examined closely to see whether they
are covered by the very diverse and varying elements of the terms and words "ordinarily
resident" or "resident". It is not as in the law of domicile, the place of a person’s origin or the
place to which he intends to return. The change of domicile depends upon the will of the
individual. A change of residence depends on facts external to his will or desires. The length of
stay or the time present within the jurisdiction, although an element, is not always conclusive.
Personal presence at some time during the year, either by the husband or by the wife and family,
may be essential to establish residence within it. A residence elsewhere may be of no
importance as a man may have several residences from a taxation point of view and the mode of
life, the length of stay and the reason for being in the jurisdiction might counteract his residence
outside the jurisdiction. Even permanency of abode is not essential since a person may be a
resident though travelling continuously and in such a case the status may be acquired by a
consideration of the connection by reason of birth, marriage or previous long association with
one place. Even enforced coerced residence might create residential status.
[73] See, among others, Beament v. M.N.R. 52 D.T.C. 1183 (S.C.C.), where the taxpayer's
intention was examined but the Court gave more weight to other factors. Bergelt v. M.N.R., 84
D.T.C. 1042 (T.C.C.) and Ferguson v. M.N.R. 89 D.T.C. 634 (T.C.C.). See also CANADA
CUSTOMS AND REVENUE AGENCY, Interpretation Bulletin IT-221R3, op. cit., note
22 at par. 9.
[74] Touchette v. Québec (Sous-ministre du Revenu), [1996] R.D.F.Q. 164 (C.Q.).
[75] Roy v. S.M.R.Q., supra, note 67.
[76] Id.
[77] Touchette v. Québec (Sous-ministre du Revenu), supra, note 73.
[78] See in this respect the articles by Alain-François BISSON, "La Disposition préliminaire
du Code civil du Québec" (1999), 44, McGill Law Journal. 539-565, by Jean-Maurice
BRISSON, "L’impact du Code civil du Québec sur le droit fédéral: une problématique"
(1992), 52 Revue du Barreau 345-36 and by Jean-Maurice BRISSON and André MOREL,
"Droit fédéral et droit civil: complémentarité, dissociation" (1996), 75, Canadian Bar Review
297-332.
[79] J.-M. BRISSON, loc. cit., note 77, at p. 352.
[80] J.-M. BRISSON and A. MOREL, loc. cit., note 77, at p. 314.
[81] Interpretation Act, R.S.C., c. I-23 (hereinafter referred to as the "Interpretation
Act").
[82] St-Hilaire v. Canada (Attorney General), [2001] F.C.A. 63, par. 77 and 90.
[83] J.-M. BRISSON, loc. cit., note 77, at p. 352.
[84] St-Hilaire v. Canada (Attorney General), supra, note 81, at par. 74 to 76.
[85] Public Service Superannuation Act, R.S.C., c. P-36.
[86] St-Hilaire v. Canada (Attorney General), supra, note 81 at par. 85.
[87] Id. at par. 90.