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The Domicile and Habitual Residence Act
This is an unofficial version.
If you need an official copy, use the bilingual (PDF) version.

This version is current as of May 24, 2017.
It has been in effect since October 29, 1999.

Note: Earlier consolidated versions are not available online.


 

C.C.S.M. c. D96

THE DOMICILE AND HABITUAL RESIDENCE ACT

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

Definitions

1           In this Act

"child" means a person who

(a) has not reached the age of majority,

(b) has not been married, and

(c) is not a parent with legal custody of his or her child; (« enfant »)

"court" means Her Majesty's Court of Queen's Bench for Manitoba; (« tribunal »)

"mentally incompetent person" means a person

(a) for whom a committee has been appointed under The Mental Health Act, or

(b) who is a vulnerable person within the meaning of The Vulnerable Persons Living with a Mental Disability Act who has a substitute decision maker for personal care with power under clause 57(2)(a) of that Act to decide where the person is to live. (« personne mentalement incompétente »)

S.M. 1993, c. 29, s. 180; S.M. 1998, c. 36, s. 129.

Determination of domicile and habitual residence

2           For all purposes of the law of Manitoba, the domicile and habitual residence of every person shall be determined under this Act to the exclusion of the laws of any other state or subdivision of a state.

Common law of domicile abolished

3           The common law rules respecting domicile, including, without limiting the generality of the foregoing,

(a) the rule known as the revival of domicile of origin whereby the domicile of origin of a person revives upon the abandonment of a domicile of choice; and

(b) the rule of law whereby a married woman has the domicile of her husband;

are no longer law in Manitoba.

Requirement of domicile and habitual residence

4           Every person has a domicile and an habitual residence.

Only one domicile and habitual residence

5           No person has more than one domicile and one habitual residence at any time.

Continuance of domicile and habitual residence

6           The domicile and habitual residence of a person continue until a person acquires a new domicile and habitual residence.

Capacity to acquire domicile and habitual residence

7           Subject to sections 9 and 10, every person is capable of acquiring a domicile and an habitual residence not dependent on the domicile or habitual residence of any other person.

Basis of domicile and habitual residence

8(1)        The domicile and habitual residence of each person is in the state and a subdivision thereof in which that person's principal home is situated and in which that person intends to reside.

Presumption of intent to reside

8(2)        For the purposes of subsection (1), unless a contrary intention is shown, a person is presumed to intend to reside indefinitely in the state and subdivision thereof in which that person's principal home is situated.

Domicile of child

9(1)        The domicile of a child

(a) where the parents of the child have a common domicile, is the domicile of the parents;

(b) where the parents of the child do not have a common domicile, is the domicile of the parent with whom the child normally and usually resides; and

(c) where the domicile of the child cannot be determined under clause (a) or (b), is the state and subdivision thereof where the child normally and usually resides.

Habitual residence of child

9(2)        The habitual residence of a child is the state and subdivision thereof where the child normally and usually resides.

Mentally incompetent from birth

10(1)       A person who is born mentally incompetent has, as long as he is either mentally incompetent or a child, a domicile and habitual residence determined in accordance with section 9.

Person becoming mentally incompetent

10(2)       A person who, at any time after birth, becomes mentally incompetent retains, as long as he is mentally incompetent, the domicile and habitual residence he had, as determined under this Act, immediately prior to his becoming mentally incompetent.

No change in domicile, etc.

10(3)       The domicile and habitual residence of a mentally incompetent person domiciled and habitually resident in Manitoba shall not be changed except with the approval of the court.

Application for approval of change

10(4)       An application to the court for an order approving the change of the domicile and habitual residence of a mentally incompetent person may be made by

(a) the person's committee; or

(b) the person's substitute decision maker for personal care appointed under The Vulnerable Persons Living with a Mental Disability Act, who has the power under clause 57(2)(a) of that Act to decide where the person is to live.

Notice of application

10(5)       Where the committee or substitute decision maker of a mentally incompetent person applies to the court under subsection (4), the mentally incompetent person shall, at least 10 days before the date fixed by the court for the hearing of the application, be served with a copy of the application.

Consideration of court

10(6)       In determining whether to approve the change of domicile and habitual residence of a mentally incompetent person on an application made under subsection (4), the court shall consider, in addition to all other relevant circumstances, the effect of the change upon any child of the mentally incompetent person.

Change in accordance with extra-provincial law

10(7)       Where the domicile and habitual residence of a mentally incompetent person is a state or a subdivision of a state outside Manitoba, the mentally incompetent person may acquire a domicile and habitual residence in Manitoba only in accordance with the law of that state or subdivision respecting a change of domicile and habitual residence of persons who suffer from mental disability.

Mentally disabled persons in Manitoba

10(8)       Where a person who, under the law of a state or subdivision of a state other than Manitoba, is by reason of mental disability or condition under committeeship or similar type of supervision of the estate or the person, and the domicile and habitual residence of the person is in Manitoba, subsections (2), (3), (4) and (5) apply to the person and to the domicile and habitual residence of the person as though the person were a mentally incompetent person.

S.M. 1993, c. 29, s. 180.

Domicile and habitual residence prior to Act

11(1)       Nothing in this Act affects the domicile or habitual residence of a person at a time before October 1, 1983.

Jurisidiction of courts maintained

11(2)       Nothing in this Act affects the jurisdiction of any court in any proceedings commenced before October 1, 1983.

Applicability of law dependent on domicile

12          Where the law applicable in any action or issue depends upon the domicile or habitual residence of a person, and the domicile or habitual residence of that person is determined under this Act to be in a state or subdivision of a state other than Manitoba, the law applicable in that action or issue is the law, excluding choice of law rules, of that state or that subdivision of a state.

Meaning of "domicile" and "habitual residence"

13          In any Act of the Legislature or regulation or rule made thereunder "domicile" and "habitual residence", have a meaning corresponding to the meaning as determined in accordance with this Act.