If you have assets, prospective beneficiaries, or other connections to foreign countries, you have cross-border or multijurisdictional considerations in your estate planning or administration. Even closer to home, you may encounter the operation of conflicting legal regimes. For this reason, for some purposes, it can be helpful to conceptualize the provinces and territories of Canada as separate constituent nations.
In no province is this more true than in Quebec, which operates under civil law, a markedly different system than the common law systems governing the other provinces and territories of Canada. As such, Ontario estate planning or administration with connections to Quebec, requires particularly careful consideration of the implications of the conflicting legal regimes.
Functionally, there are differences between succession law in Ontario and in Quebec, both in terms of terminology (e.g., “liquidator” as opposed to “estate trustee”), and in the option to involve a notary in the preparation of a will in Quebec or in probating a will in Quebec.
Substantively, however, to fully understand the succession laws of Quebec, the various provisions of the Civil Code of Quebec must be understood conjunctively with particular emphasis on Book Three – Successions.
Domicile
When it comes to conflict of laws, generally, including as between Ontario and Quebec, domicile plays a vital role in estate planning and administration.
Foote Estate (Re), 2009 ABQB 654 remains a leading Canadian case on domicile. Where the Court had to consider the estate of a deceased with significant connections to multiple jurisdictions – and, therefore, to multiple legal regimes – a determination as to domicile was required to determine which law would govern the disposition of the deceased’s estate.
We begin with the threshold issue of what law governs the determination of domicile in the first place. This is governed by the doctrine of lex fori, which is to say, per Foote, “the court is to apply the law of the jurisdiction where the issue of domicile is raised”.
We now consider the meaning of domicile itself, which is independent of the concept of nationality. A person only ever has one domicile at any given time, no more and no less. One starts with a “domicile of origin”, generally being the place of one’s birth, and can later adopt a “domicile of choice” to displace earlier domiciles; however, the domicile of origin is not easily displaced.
As set out in Foote, the test for establishing a domicile of choice “includes two parts: a person being resident in their new domicile (a domicile of choice), and intending to make that location the person’s permanent home for the indefinite future. Either alone is not sufficient to establish a domicile of choice.”
For our purposes, an exhaustive review of Foote will not be conducted here. Suffice to say there is nuance in satisfying the test to establish a domicile of choice. Moreover, there are various dates at which a determination as to domicile may be relevant, including the date of death and the date at which a will was executed.
Movable versus Immovable Property
Domicile having been established, another important concept that affects estate planning and administration is the distinction between “movable” and “immovable” property. In essence, immovable property may be understood to be real property, including land and interests in land, and movable property may be understood to be all other types of property.
This distinction is of importance as, at common law, movable property is governed by the law of the domicile of the owner, while immovable property is governed by the doctrine of lex situs. In other words, immovable property is governed by the law of the jurisdiction in which the property is situated.
Application: A Quebec Estate with Immovable Property in Ontario
We now come to the case of Landreau v Lachapelle, [1937] OR 444. In the instant case, husband and wife were both domiciled in Quebec at all relevant times. At the time of the wife’s death, she owned real property in Ontario together with her surviving husband, jointly with right of survivorship.
A right of survivorship being a concept foreign to Quebec’s civil law, the liquidator of the wife’s estate brought an action in Ontario attacking the husband’s entitlement. In the result, the Court applied the doctrine of lex situs in upholding the husband’s entitlement in Ontario by right of survivorship.
For Further Reading
For further reading, we invite you to review our International Estate Planning and Administration Guides, which provide further details concerning cross-border and multijurisdictional matters:
“Private Wealth and Private Client Canada 2024”
“International Succession Laws”
“Practical Law—Private Client Global Guide”
“Private Client Comparative Guide”
As always, it is important to retain trust and estate counsel with specialized knowledge in the appropriate jurisdiction to guide you through these complex matters.
— Michael von Keitz