“Section 15 of the Family Law Act, supra, provides as follows:
15. The property rights of spouses arising out of the marital relationship are governed by the internal law of the place where both spouses had their last common habitual residenceor, if there is no place where the spouses had a common habitual residence, by the law of Ontario. (Emphasis added).
The Applicant submits that Ontario is the place where both spouses had their last common habitual residence, and the Respondent contends that the spouses’ last common habitual residence was in Lebanon, where they married and had spent the previous seven months.
In the case of Pershadsingh v. Pershadsingh, 1987 CanLII 4361, this is was squarely dealt with by Walsh J. of the High Court of Justice of Ontario, as it was then known. At page 3, Walsh J. stated:
The key words of s. 15 are “last common habitual residence”. I interpret these words to mean the place where the spouses most recently lived together as a husband and wife and participated together in everyday family life.
Further on the same page, Justice Walsh accepted the description of “habitual residence from Dicey and Morris, The Conflict of Laws, 10th ed., and he from that treatise as follows:
It is evident that “habitual residence” must be distinguishable from mere “residence”. The adjective “habitual” indicates a quality of residence rather than its length. Although it has been said that habitual residence means “a regular physical presence which must endure for some time,” it is submitted that the duration of residence, past or prospective, is only one of a number of relevant factors; there is no requirement that residence must have lasted for any particular minimum period.
It has been said that an element of intention to reside is required, though not determinative…The better view seems to be that evidence of intention may be important in particular cases, e.g. in establishing habituation when the actual period or periods of residence have been short, but is not essential.”