The law of domicile is an interesting, albeit rarely considered, area of the law. It is a subset of what is known as conflict of laws and thus relates to which law is applicable in circumstances where the law of multiple jurisdictions could apply. Domicile, with respect to individuals, refers to the place where an individual makes his or her permanent home. The place where a person makes his or her permanent home governs his or her personal law. In other words, Saskatchewan law governs a person who is domiciled in Saskatchewan. Everyone has a domicile and everyone has only one domicile at a time. Domicile is distinct from nationality or residence. A person may be a citizen of the United States, yet be domiciled in Saskatchewan. Similarly, a person may reside in Alberta yet be domiciled in British Columbia. It may seem odd that a person could reside in one province while being domiciled in another, but there are certainly situations where this is case. Take, for example, a member of the armed forces who is stationed in Alberta but normally resides in and intends to return to British Columbia upon completing his or her service. We would say that this person resides in Alberta (at least temporarily) but is domiciled in British Columbia. The preceding situation arises as domicile is determined not only by residence but by intention. This is what is known as a person’s “domicile of choice,” the place where he or she establishes a permanent residence with a present intention to reside there permanently (until the happening of something unexpected or uncertain causes that person to adopt some other permanent home). This is contrasted with his or her “domicile of origin,” which arises on birth and continues until that person acquires a domicile of choice. Domicile of origin is also revived where a person abandons a domicile of choice but does not acquire a new one immediately thereafter. What effect can the law of domicile have? That the law of domicile is rarely considered illustrates that it does not often play a pivotal role in the outcome of a case. That does not mean, however, that it cannot have meaningful implications (and sometimes strange results). The Saskatchewan Court of Queen’s Bench recently decided a case where the main issue was domicile: Vanston v Scott, 2014 SKQB 64. Dr. Scott, a radiologist, had previously practiced radiology in Kelowna before moving to Saskatoon where he practiced for over a decade. In March 2012, he and his second wife, Ms. Vanston, decided to leave Saskatchewan. They leased a home in Kelowna in August 2012, but then travelled to Mexico and Costa Rica looking for work and residence. They returned to Kelowna in September 2012, where Dr. Scott died only a week later. Dr. Scott’s two adult children, who had been excluded from his Will, launched an action arguing that Dr. Scott’s domicile was British Columbia at the time of his death, presumably, as the law in British Columbia would be more favourable to them in challenging Dr. Scott’s Will. Ms. Vanston, however, argued that Dr. Scott was still domiciled in Saskatchewan at the time of his death. The Court concluded that Dr. Scott was domiciled in neither Saskatchewan (as he had abandoned it as his domicile) nor British Columbia (as he did not have the requisite intention to make it his permanent home). Instead, it was determined that Dr. Scott’s domicile of origin, Alberta, revived and that the law of Alberta would govern his estate. The Scott decision is one example of the anomalous results that domicile can produce, considering neither party in the case argued that Alberta was Dr. Scott’s domicile at the time of his death. Such outcomes have led to some reform in this area of law. Manitoba, for example, has legislation that supplants the common law of domicile. It is also noteworthy that the Scott decision has been appealed. It will be interesting to see how the Saskatchewan Court of Appeal addresses the issues raised in the case and what impact the decision may have. For the time being, however, the law here remains largely as it did when the first Supreme Court of Canada case on domicile was decided in 1886.  

About the author: Graham is an articling student in the firm’s Regina office.

About McKercher LLP: McKercher LLP is one of Saskatchewan’s oldest, largest law firms with offices in Saskatoon and Regina. Our deep roots and client-first philosophy have made us a top ranked firm by Canadian Lawyer magazine (2011, 2013). Expertise, experience and capacity provide innovative solutions for our clients’ diverse legal issues and complex business transactions.   This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances.  Counsel should be consulted concerning your own situation and any specific legal questions you may have.