What is the test for habitual residence?

Newfoundland and Labrador, Canada


The following excerpt is from Monteiro v. Locke, 2014 CanLII 50943 (NL PC):

In Ellis v. Wentzell-Ellis, 2010 ONCA 347, Laforme J., writing for a unanimous Court of Appeal, said as follows at paragraphs 22 and 23: “[22] As the application judge correctly notes at para. 39 of her reasons, this court held in Korutowska-Wooff that habitual residence involves an intention to stay in a place “whether temporarily or permanently for a particular purpose, such as employment, family, etc.” The principles to be considered when deciding the issue of habitual residence are specified by Feldman J.A. at para. 8 in Korutowska-Wooff and have been repeatedly restated in the jurisprudence: --the question of habitual residence is a question of fact to be decided based on all of the circumstances; --the habitual residence is the place where the person resides for an appreciable period of time with a “settled intention”; --a “settled intention” or “purpose” is an intent to stay in a place whether temporarily or permanently for a particular purpose, such as employment, family, etc.; --child’s habitual residence is tied to that of the child’s custodian(s).

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