Supreme Court of Canada
Trottier v. Rajotte, [1940] S.C.R. 203
Date: 1939-12-22
Ernest Trottier
(Defendant) Appellant;
and
Dame Lionel Rajotte
(Plaintiff) Respondent.
1939: March 1, 2, 3; 1939: December 22.
Present:
Duff C.J. and Rinfret, Cannon, Kerwin and Hudson JJ.
ON APPEAL FROM THE COURT OF KING'S BENCH,
APPEAL SIDE, PROVINCE OF QUEBEC
Domicile—Marriage in foreign country between
persons previously living in Quebec—Matrimonial status—Action for damages by
wife for personal injuries—Whether common or separated as to property—Conditions
necessary to determine whether domicile of origin or of birth is changed and
new domicile acquired.
The respondent, a married woman describing
herself in her statement of claim as being separated as to property from her husband
and having been duly authorized by him, brought an action for personal injuries
against the appellant, the latter pleading inter alia that the
respondent was commune en biens and that therefore any right of action
belonged exclusively to her husband. There was no marriage contract between the
consorts and by the law of Quebec they are presumed to have intended to subject themselves, as
regards their rights of property, to the law of their matrimonial domicile,
i.e., the domicile of the husband at the time of the marriage. And the
principal question at issue in this case is whether such domicile was in Quebec where in the absence of a marriage
contract community as to property is presumed or was at another place where in
such a case separation as to property would be presumed. The husband, born at St. Germain, Quebec, in 1894, went to the United States in quest of work in 1923. In
the fall of that year, his father, mother, brothers and sisters followed him,
but they returned to Quebec in
1928, several months before the marriage. The respondent born at the same place
in 1905, went in 1922 to Bristol, in the State
[Page 204]
of Connecticut, also in quest of work and remained there except for a period of
eleven months during which she lived with her family in Quebec. The marriage took place at Bristol
in September, 1928, and two years later, the respondent and her husband
returned to St. Germain, with the intention of building a home somewhere in Quebec. The husband also testified that he
had taken out some papers connected with American citizenship; but these papers
were not produced and the nature of the representations made for the purpose of
obtaining them were not disclosed. The trial judge maintained the respondent's
action, which judgment was affirmed by the appellate court.
Held that it
was incumbent upon the respondent to establish the existence of a regime of
non-community of property in the matrimonial domicile. The only evidence as to
foreign law consisted of an admission that the regime of community of property
did not prevail' in the state of Connecticut. It was, therefore, incumbent upon the respondent to establish a
domicile in Connecticut. The
evidence did not establish by strict and conclusive proof a fixed settled
intention on the part of the husband to make his permanent residence in the
state of Connecticut or, in other words, a residence there, not merely for a
particular purpose, not merely for the purpose of getting work there, but a
permanent residence "general and indefinite in its future
contemplation," and, therefore, from the facts and circumstances of the
case, inference should be drawn that the husband had not acquired at the time
of his marriage a domicile in the state of Connecticut. If so, the law of his
former domicile, i.e., the law of Quebec, must determine the matrimonial status of the respondent, and
according to that law the respondent is presumed to be commune en biens. Therefore
the respondent cannot sue in her own name for recovery of damages for personal
injuries and her action should be dismissed.
The principles by which the courts are
governed when it is alleged that a domicile of origin, or a domicile of birth,
has been changed and a new domicile has been acquired are, first, that a
domicile of origin cannot be lost until a new domicile has been acquired; that
the process of the acquisition of a new domicile involves two factors,—the
acquisition of residence in fact in a new place with the intention of
permanently settling there: of remaining there "for the rest of his natural
life," in the sense of making that place his principal residence
indefinitely. In other words, a domicile of origin is not lost by the fact of
the domiciled person having left the country in which he was so domiciled with
the intention of never returning; but it is essential that he shall have
acquired a new domicile, that is to say, that he shall in fact have taken up
residence in some other country with the fixed, settled determination of making
it his principal place of residence, not for some particular purpose, but
indefinitely.
Quaere as to
admissibility of direct evidence as to intention.—Dictum of Mignault J.
in Taylor v. Taylor ([1930] S.C.R. 26) ref.
The strict rule as to concurrent findings of
fact is not applicable to the circumstances of this case.
Judgment of the Court of King's Bench (Q.R.
64 K.B. 484) reversed.
[Page 205]
APPEAL from a judgment of the Court of King's
Bench, appeal side, province of Quebec,
affirming the judgment of the Superior Court, Denis J. and maintaining the
respondent's action for $3,000 damages.
The material facts of the case and the
questions at issue are stated in the above head-note and in the judgment now
reported.
John T. Hackett K.C. for the appellant.
C. A. Séguin K.C. and G. Ringuet K.C. for
the respondent.
The judgment of the Court (Mr. Justice Cannon
taking no part in it) was delivered by
The Chief
Justice—The respondent is a married woman and, by the
law of the province of Quebec, the right of action for damages for
personal injuries suffered by a married woman commune en hiens belongs
exclusively to her husband and she cannot sue for recovery of such damages in
her own name, even with the authorization of her husband. An objection based
upon this rule is raised by the defendant who appeals, and who alleges that the
plaintiff comes within it, and, consequently, has no right of action against
him.
The answer to these questions, admittedly,
depends upon the matrimonial domicile for in this case there was no marriage
contract and by the law of Quebec the consorts are presumed to have intended to subject themselves,
as regards their rights of property, to the law of their matrimonial domicile.
In the present case it is not disputed that the matrimonial domicile is the
domicile of the husband at the time of the marriage.
It will be convenient, first, to state the
undisputed, pertinent facts. The husband, Lionel Rajotte, was born at St.
Germain de Grantham on the 22nd of July, 1894. In February, 1923, he went to
the United States in quest of
work. In the autumn of that year his father, mother, brothers and sisters
followed him. They returned to St. Germain in May, 1928, several months before
the marriage of Rajotte to the plaintiff. The plaintiff, whose name was also
Rajotte, was also born at St. Germain de Grantham in March, 1905. In 1922 she
went to Bristol,
[Page 206]
Connecticut, also in
quest of work. She remained there except for a period of eleven months during
which she lived with her family at St. Germain. She married her present husband
at Bristol on the 4th of
September, 1928. The members of her family went from St. Germain to Bristol and remained for a time but
eventually returned to St. Germain where they were living at the time of the
trial. Two years after the marriage, they returned to St. Germain. In the
declaration her husband is described as "Lionel Rajotte de St. Germain de
Grantham."
The respondent, by her pleading, alleges:
Qu'elle est l'épouse séparée de biens de
Lionel Rajotte de St. Germain de Grantham, autorisée par ce dernier aux fins
des présentes;
and, in support of this allegation that she is
separate as
to property, evidence was adduced intended to
establish a matrimonial domicile in the state of Connecticut. The conclusions of the learned trial judge as to this point are
stated in his judgment in the following two consider ants:
Considérant que l'objection du défendeur, à
Paction de la demanderesse, basée sur la prétention que cette dernière ne
serait pas mariée sous le régime de la séparation de biens, doit être rejetée
pour plusieurs raisons; tout d'abord, parce qu'il est prouvé que la
demanderesse est réellement mariée sous le regime de la separation de biens;
ensuite, parce que l'état matrimonial de la demanderesse ne concerne pas le
défendeur qui n'y a aucun intérêt; enfin, parce que si Taction n'appartenait
pas à la femme, parce que mariée en communauté de biens, ce moyen aurait dû
être plaidé par exception à la forme, alors qu'il n'est plaidé ni à la forme,
ni au fonds la défense au mérite;
Considérant que le choix de l'état matrimonial
des époux, irrévocable après le mariage, reste soumis à leur seule volonté
avant le mariage, d'où il résulte que les tiers n'ont ni Tintérêt nécessaire ni
le droit de discuter l'intention pré-nuptiale et les circonstances qui, dans la
présente cause, ont fait que les époux ont été mariés sous le régime de la
séparation de biens;
And the conclusion of the Court of King's Bench
is expressed as follows:
Considérant qu'il ressort des faits et des
circonstances rapportés, que le 4 septembre 1928, alors que la demanderesse et
son époux se sont mariés à Bristol, dans le Connecticut, l'un des Etats-Unis
d'Amérique, tous deux, et spécialement la man, y avaient établi déjà leurs
domiciles; que, n'ayant pas fait de contrat de mariage, ils se sont done mariés
sous le régime de la séparation de biens, suivant l'admission des parties
concernant la loi du lieu; qu'en conséquence la demanderesse, assistée de son
mari, a capacité d'ester en justice en la présente cause;
Before proceeding to examine the evidence, it is
desirable, perhaps, first, to state some settled principles by
[Page 207]
which the courts are governed when it is alleged
that a domicile of origin, or a domicile of birth., has been changed and anew
domicile has been acquired.
The subject came before this Court in the case
of Wadsworth v. McCord in the
year 1886; and the rules and principles by which the courts must be guided in
deciding such questions under the law of Quebec were very fully considered. There was an appeal to the Privy
Council which was dismissed; and
the. judgment of the Board delivered by Sir Barnes Peacock implies that the
rules for determination of international domicile do not differ from the
generally recognized rules which are fully stated and illustrated in the
judgment of Sir William Ritchie in this court. After quoting fully from the
judgments of the Peers in Bell v. Kennedy, Udny v. Udny and the Lauderdale Peerage case, the learned Chief Justice proceeds (p.
478):
I cannot discover that these principles are
peculiar to the law of England;
they are of universal application as principles of private international law,
and so far as the province of Quebec is concerned, there is nothing in the law of that province
antagonistic to them.
The judgments of Henry J. and Gwynne J. proceed
upon the same principle.
The principles which ought, I think, to be kept
steadily in view and rigorously applied in this case are, first, that a
domicile of origin cannot be lost until a new domicile has been acquired; that
the process of the acquisition of a new domicile involves two factors,—the
acquisition of residence in fact in a new place and the intention of
permanently settling there: of remaining there, that is to say, as Lord Cairns
says, "for the rest of his natural life," in the sense of making that
place his principal residence indefinitely.
It will be necessary, I think, to consider
rather carefully the evidence as to the change of residence in fact, but before
going into that, it will be useful, I think, to discuss more fully the point of
intention.
[Page 208]
As Lord Westbury says in Udny v. Udny (page 457) the residence for the purpose
must be residence fixed not for a limited
period or particular purpose, but general and indefinite in its future
contemplation.
Again, it was laid down in the Lauderdale
Peerage case (I am
quoting from the head-note)
a change of domicile must be a residence sine
animo revertendi. A temporary residence for the purposes of health, travel,
or business does not change the domicile. Also (1) every presumption is to be
made in favour of the original domicile; (2) no change can occur without an
actual residence in a new place; and (3) no new domicile can be obtained
without a clear intention of abandoning the old.
In this case two things must be established,
first, a residence in Connecticut, not merely for a particular purpose, not
merely for the purpose of getting work there, but a permanent residence
"general and indefinite in its future contemplation."
In Winans v. Attorney-General, Lord Macnaghten quotes from Lord Westbury
with approval to the effect that the animus manendi necessary to change
the domicile of origin to a new domicile means a fixed and settled purpose and
on the same page he quotes the language of Lord Cairns as follows:
To the same effect was the inquiry which
Lord Cairns proposed for the consideration of the House in Bell v. Kennedy. It was this: Whether the person whose
domicil was in question had "determined" to make, and had, in fact,
made the alleged domicil of choice "his home with the intention of
establishing himself and his family there, and ending his days in that
country?"
And again, on page 292, Lord Macnaghten says:
My Lord, if the authorities I have cited
are still law, the question which your Lordships have to consider must, I think,
be this: Has it been proved "with perfect clearness and satisfaction to
yourselves" that Mr. Winans had at the time of his death formed a
"fixed and settled purpose"—"a determination "—" a
final and deliberate intention"—to abandon his American domicil and settle
in England?
I think it is important also to emphasize this:
the requirement of strict and conclusive proof is one which is naturally
exacted owing to the very grave consequences entailed by a change of domicile.
Lord Buckmaster says in Ramsay v. Liverpool:
The law upon the matter is settled. A domicile
of origin can be changed and in its place a domicil of choice acquired, but the
alteration
[Page 209]
is a serious matter not to be lightly
assumed, for it results in a complete change of law in relation to two of the
most important facts of life, marriage and devolution of property. This is
admirably expressed by Lord Curriehill in Donaldson v. McClure in words unnecessary to repeat, which were
expressly approved by Lord Halsbury in Marchioness of Huntly v. Gaskell.
And, to quote once more from Lord Macnaghten's
judgment in Winans v. Attorney-General, he says: "And," says his
Lordship (referring to Lord Westbury in Bell v. Kennedy)
"unless you are able to shew that with
perfect clearness and satisfaction to yourselves, it follows that a domicil of
origin continues." 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 domicile 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.
Before proceeding to discuss the facts, it,
perhaps, ought to be added that a domicile of origin is not lost by the fact of
the domiciled person having left the country in which he was so domiciled with
the intention of never returning. It is essential that he shall have acquired a
new domicile, that is to say, that he shall in fact have taken up residence in
some other country with the fixed, settled determination of making it his
principal place of residence, not for some particular purpose, but
indefinitely.
This factor is of great importance in the
present case. The issue is not whether the husband had left Quebec with the
intention of settling somewhere in the United States and not returning to
Quebec, but whether he had taken up his residence in the State of Connecticut
with a fixed, settled determination of making his permanent residence in that
state.
The point is dealt with in the judgments in Wahl
v. Attorney-General. The
person whose domicile was in question there had been born in Germany and had a
domicile of origin in Germany.
He came to England and, after
residing there for some years, applied for naturalization as a British subject
under the Aliens Act of 1870. In his application he declared that he
intended to continue
[Page 210]
to reside permanently within the United Kingdom
of Great Britain and Ireland
and that he had no intention of permanently leaving the United Kingdom. The argument addressed to
the courts in favour of change of domicile naturally emphasized this
declaration and, indeed, the declaration was considered by Lord Macmillan as
sufficient to turn the scale in discharging the onus resting upon the
Attorney-General. Lords Dunedin, Warrington, Atkin and Thankerton rejected the contention and the House of
Lords held that the domicile of origin had not been thrown off.
Lord Dunedin's judgment seems to me to be very
useful in its application to the present case and I quote it in full:
I have had the advantage of reading the
opinion which will be delivered by Lord Atkin, and as I agree in omnibus with
it I do not think it necessary to deliver a full opinion. Were it not for the
declaration I do not think that in the light of many cases decided as to
domicile anyone would say that the determination exuere patriam was
proved. Coming to the declaration I make three remarks. First, naturalisation
does not carry with it as an inevitable consequence change of domicile. Second,
in signing the declaration it is extremely unlikely that the question of
domicile was before his mind. Third, the declaration itself is ambiguous, for
residence in the United Kingdom
as an intention does not discriminate between English and Scotch domicile,
though these are essentially different. It seems to me to put too great a
burden on the class of residence in England which has been proved, not only to establish the factum, but to
turn the ambiguity of expression as to the animus into a certainty.
I think the appeal should be allowed.
I may add that the judgment of Lord Atkin, in
which Lord Dunedin concurs, illustrates admirably, I think, the searching
analysis to which it is the practice of the courts to subject the facts adduced
in support of an allegation that a domicile of origin has been changed and a
new domicile acquired.
But my immediate purpose is to emphasize the
third of Lord Dunedin's "three remarks." An intention to reside in
the United Kingdom, although it
may be a starting point as evidence, tells us nothing per se as to
change of domicile. So with regard to the United States, an intention
indefinite as to locality to live somewhere in the United States is in itself
inconclusive where the question at issue is: Has A, the person whose domicile
is in dispute, taken up residence in a given state with the intention of
residing permanently in that State? Residing in
[Page 211]
Philadelphia with the intention, not of making
his permanent home in Philadelphia, but of making his home in Philadelphia, Baltimore or Washington,
could not be effective to displace the domicile of origin.
Lord Dunedin's judgment suggests the
advisability of entering a caveat against a possible misunderstanding. There
are passages in the judgments of very eminent judges which seem to lay down
this: that the intention necessary to constitute a change of domicile must
amount to an intention directed to a change of civil status. I do not mean, of
course, a change of political status (nationality), by which one ceases to be
the subject of one country and becomes the subject of another, but a change of
civil status by which it may be said, for want of a better expression, that one
ceases to be the citizen of one country and becomes, to borrow the expression
of Vice-Chancellor Wickens in the judgment to which I am now going to refer, "the
citizen of another." That view is discussed by Vice-Chancellor Wickens in Douglas
v. Douglas in a
judgment which in some respects, at all events, is approved by Lord Macnaghten
in Winans v. Attorney-General;
and that very learned judge feels himself forced to the conclusion that that is
not the rule of English law, although he thinks such a rule would be a very
convenient one.
On the other hand, there is a judgment of a very
great judge, Lord Justice Turner in Jopp v. Wood in which he employs language at least
pointing; in the other direction which is quoted bv Ritchie C.J. in Wadsworth v. McCord. Then
there is the well known judgment of Lord Halsbury in Huntly v. Gaskell, and the passage in that judgment at pages
66 and 67 in which he approves the judgment of Lord Curriehill in Donaldson v.
McClure, whose
judgment, as Lord Halsbury says, was approved and quoted by Lord President
Inglis in the case of Steel v. Steel., Lord Curriehill's judgment, and the
passage in Lord Halsbury's judgment to which I have referred, appear to have
been accepted by Lord Buckmaster in Ramsay v. Liverpool. It is not, in my view, necessary
[Page 212]
for the purposes of this case to consider the
effect of those passages. I refer to 'the topic only because Lord Dunedin's
language, which I have quoted, suggests the possibility that his view was in
accord with that of Lord President Inglis and Lord Curriehill.
You cannot of course have a change of domicile
in the international sense unless you acquire a new domicile in a jurisdiction
in which, having acquired it, you acquire a new civil status in the sense
mentioned by Wickens, V.C. But it is unnecessary for the purpose of this appeal
to express any opinion in the question whether the intention to acquire a new
domicile as a factor in producing the legal result involves a specific
intention to acquire a new civil status.
So far as this particular case is concerned, it
must be remembered that the only change of domicile in question is that found
by the Court of King's Bench, a change of domicile to Connecticut. Prima facie, the law of the foreign country would be the
law of Quebec, that is to say, any party to an action alleging that a married
woman was separate as to property would have to prove in proceedings in the
Quebec courts either that there was a marriage contract, or that the law
governing the several rights of the spouses in respect of their property is
different from the law of Quebec; and the respondents rely upon an admission
given at the trial that, by the law of Connecticut, a wife marrying without a
marriage contract is separate as to property. The question with which we are
strictly concerned then is: Had the husband acquired at the time of the
marriage a domicile in Connecticut?
The facts in evidence are of the most meagre
nature. The husband was born at St. Germain de Grantham in Quebec in 1894 and
lived in that village with his parents until the year 1923 when he went to the United States. It is rather important to
follow the evidence closely. The husband himself says that at the time he was
married he had been in the United States since the 18th of February, 1923; that
he was married in 1928: that during the period between 1923 and 1928 he had
always lived in the United States; that he was a journeyman carpenter and
worked on construction; that his parents were living in St. Germain and that
after he went to the United States the family went there also.
[Page 213]
D. Dan 3 la même année, ils
sont partis pour les Etats-Unis? R. Je les ai fait demander aux Etats-Unis, ils
sont montés.
D. Pourquoi les avez-vous fait demander? R. Pour
s'en venir rester aux Etats-Unis.
D. Parce que vous vouliez y rester? R. Oui.
D. Maintenant, est-ce que votre famille demeure
encore aux Etats-Unis? R. Non.
D. Pendant combien de temps votre famille est-elle
demeurée aux Etats-Unis? R. Cinq ans.
D. Au moment de votre mariage, est-ce que la
famille était aux Etats-Unis? R. En Canada, depuis le mois de mai.
D. Après votre mariage combien de temps êtes-vous
resté aux Etats-Unis vous-même? R. Je me suis marié dans le mois de septembre,
je suis descendu au bout de deux ans, dans le mois de septembre, le 11 septembre.
D. Aviez-vous l'intention, au moment de votre
mariage, de revenir au Canada ou aviez-vous l'intention de rester aux
Etats-Unis? R. J'avais l'intention de rester aux Etats-Unis.
D. Etait-ce pour cela que vous aviez pris vos
papiers américains? R. Certainement.
Two years after his marriage he and his wife
returned to St. Germain; and he says, "Je suis revenu au Canada avec
l'idée de bâtir à Drummondville".
Now, it will be observed that through the whole
of this evidence there is nothing to show a residence in fact-in the State of Connecticut. In cross-examination, it is
true, there is this question and answer:
Q. Vous étiez
menuisier, vous dites, à Bristol? A. Oui.
But there is nothing, I repeat, to show even a
residence in fact in Bristol or in Connecticut. As to intention, apart from
Rajotte's direct evidence as to intention, there are certainly no facts upon
which an inference could reasonably be founded of an intention to settle
permanently in Connecticut or
anywhere in the United States.
It is contended that he was domiciled in Bristol but, apart from the general statement quoted above, there is no
evidence; and there are no concrete facts which would indicate the
circumstances of his being there. Had he a house? Was he living in lodgings?
Had he anything in the nature of permanent employment? His family, he says,
were in the United States for some years, returning to Quebec before the marriage, but he does not tell us where. Nor is there
anything about the circumstances or conditions of their life. I will come to
his direct evidence as to intention in a moment.
As to evidence of the wife, she says that she
had been living in Bristol
about five years at the time of her marriage
[Page 214]
and that her family came to the United States
two years after she did; that she was seventeen or eighteen years old when she
left Quebec for the United States; and that she went there to work. She says
that her father was a farmer and that the family had gone to Bristol in search of. work but still
retained the ownership of the farm. Except as to direct evidence of intention,
to which I shall come in a moment, there are not facts stated in her evidence
from which it could properly be inferred that she had gone to Connecticut or,
indeed, to the United States with the purpose of making her permanent home
there.
Before coming to the direct evidence of
intention, it is desirable, I think, to refer to some judicial observations. In
Wadsworth v. McCord,
Dorion, C.J., says this:
As Merlin, vo. Domicile, says, there is
nothing more difficult to decide than questions of domicile. This was said in France where the population is sedentary,
but the difficulty here is greatly increased. Here is a man who left Ireland a grown up person. His domicile was
in Ireland. The law is clear
that the domicile of origin is the real domicile until another domicile has
been acquired. Twenty or thirty years may intervene, but if the person has not
acquired another domicile the domicile of origin continues to be his domicile.
There was a case lately in Ontario (Magurn v. Magurn)
where a man had been twelve years away from his domicile, and it was held that
his original domicile was still his domicile.
To the same effect is the observation of Lord
Wensleydale in Whicker v. Hume:
I perfectly agree with my noble and learned
friend that, in these times of visiting abroad, transferring oneself even for
years abroad, you must look very narrowly into the nature of the residence
abroad before you deprive an Englishman living abroad of his English domicile.
Lord Macnaghten uses similar language in Winans
v. Attorney-General:
* * * you must look very narrowly into the
nature of a residence suggested as a domicil of choice before you deprive a man
of his native domicil.
It is well, I think, to keep this consideration
in mind when asking ourselves the question whether there are any facts in this
case apart from the direct evidence of intention from which it can be seriously
argued that an inference
[Page 215]
arises that either husband or wife had a fixed
and settled purpose of remaining indefinitely in Bristol or Connecticut or even in the United States.
I come now to the direct evidence of intention.
First of all, there is a question whether such evidence is admissible. The
observation of Mr. Justice Mignault, speaking on behalf of the majority of this
Court in Taylor v. Taylor appears to me to
be an obiter dictum. It is not, so far as I can see, a part of or a step
in the ratio decidendi; consequently, it is open to challenge in this
Court and, when challenged, it would be our duty to examine the point on the
merits. Nevertheless, it is the deliberate opinion of Mr. Justice Mignault,
concurred in by the late Chief Justice of this Court and by my brother Rinfret.
I do not find it necessary to decide now whether it correctly states the law of
Quebec. Remembering who the
learned judges were who were responsible for it, I should feel called upon to
weigh the question with great care before differing from them.
The English rule is, no doubt, different. The
rule, I think, is correctly stated on page 204 of Halsbury's Laws of England
(Hailsham Ed.), Vol. 6, in these words:
Direct evidence of intention is often not
available, but a person whose domicil is in question may himself give evidence
of his intentions, present or past. Evidence of this nature is to be accepted
with considerable reserve;, even though no suspicion may be entertained of the
truthfulness of the witness.
Assuming, but not deciding, that this is the law
of Quebec, it is, of course, of the greatest importance to analyse direct
testimony as to intention with care and to ascertain precisely what is the
nature of the intention which the witness is ascribing to himself at the
pertinent period.
The two witnesses in this case are the plaintiff
and her husband. I have gone through the evidence of the husband with great
care and there is no statement by him that he had a fixed settled intention to
make his permanent residence either at Bristol or in the state of Connecticut. He mentioned the fact that he
had taken out some papers connected with American citizenship. The papers are
not produced and of the nature of the representations made for the purpose of
obtaining them we are not informed.
[Page 216]
The fact that he made some such application is,
in the circumstances of this case, not a weighty fact for the reason (if for no
other) given by Lord Dunedin in the judgment quoted above, namely, that there
are many jurisdictions in the United States where a separate domicile in the
international sense could be acquired, and that such an act is necessarily too
equivocal to determine the question whether the applicant intended to make his
permanent home in a particular state.
Then, for the same reason that the declaration
in Wahl's case, as to
the intention to reside in the United Kingdom, was inconclusive upon the issue
whether a domicile had been acquired in England, the direct evidence of Rajotte
that he intended to remain the United States—and his evidence goes no further
than this—can really be of no weight in determining whether or not he acquired
a domicile in Connecticut or in any other state. These observations apply
equally to the evidence of the respondent.
This is not a case in which, I think, the rule
as to concurrent findings of fact ought to be applied, apart altogether from
the question of the admissibility of direct testimony as to intention. It seems
abundantly clear that the learned trial judge must have misdirected himself. He
could hardly have appreciated the consideration that the domicile of origin
could not be displaced until another domicile had been acquired; and that it
was essential for the plaintiff to prove that her husband had a domicile in
Connecticut, which was the state in which they were married, and the only state
in respect of which there was an admission as to the matrimonial law. The
majority of the Court of King's Bench appear also to have overlooked the fact
that the direct evidence of intention, even if accepted at its face value, was
inconclusive because the intention deposed to was not the only intention that
could be relevant, namely, an intention to reside permanently in Connecticut.
Moreover, domicile of choice is a conclusion or
inference which the law derives from certain facts (per Lord Westbury,
[Page 217]
Udny v. Udny), and I have not found a case in which the
rule as to concurrent findings of fact has been applied to concurrent
conclusions on the issue (usually one of mixed fact and law) that a particular
domicile has been acquired or has been cast off. In Wadsworth v. McCord this Court reversed the concurrent
conclusions as to domicile of the Superior Court and the Court of Queen's
Bench. In Winans v. Attorney-General, the House of Lords reversed the
concurrent conclusions of Kennedy and Phillimore JJ. before whom the
information was heard, and of the Court of Appeal. In Wahl v. Attorney-General, the House of Lords reversed the
concurrent conclusions as to domicile of the King's Bench Division and of the
Court of Appeal. In Bell v. Kennedy the House of Lords reversed the concurrent
findings of Lord Kinloch and the Second Division of the Court of Session. In
all these cases the critical question concerned the proper inference to be
drawn from the facts in evidence. The rule mentioned has, I think, no relevancy
in this case.
As regards the suggestion made from the Court
that the husband might now be added as a party respondent, we are satisfied
that, since it follows from our judgment that the wife, the plaintiff of
record, had no cause of action, the Court of King's Bench would not in such
circumstances, under the practice prevailing in the province of Quebec, have
substituted the husband as plaintiff.
It is not necessary to consider the question of
prescription and we express no opinion on it.
The appeal should be allowed and the action
dismissed with costs throughout.
Appedal allowed with costs.
Solicitors for the appellant: Hackett,
Mulvena, Foster, Hackett & Hanna.
Solicitor for the respondent: Gaston
Ringuet.
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