Court of Queens Bench of Alberta

Citation: Foote Estate (Re), 2009 ABQB 654

Date:20091116 Docket: ES03 119897 Registry: Edmonton

In the Matter of the Estate of Eldon Foote Court File Number Court Judicial District Estate Name Applicant (Plaintiff) ES03 119897 Court of Queens Bench of Alberta (Surrogate Matter) Edmonton Eldon Douglas Foote Trudy David, Douglas Foote, Debbie Entwistle, Dean Foote & Laurie Evans and Anne Foote Respondent (Defendant) The Estate of Eldon Douglas Foote and the Lord Mayors Charitable Fund and the Edmonton Community Foundation

_______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________

Page: 2 1. 2. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 5 Parties and Positions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 5 a. The Family. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 5 b. The Executor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 5 c. The Beneficiaries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 6 Preliminary Considerations and Notes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 6 Law.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 6 a. Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 6 b. Application of the lex fori. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 8 c. Domicile and legal principles on domicile. . . . . . . . . . . . . . . . . . . . . . . . . . Page: 8 i. A person always has a domicile, and a person can only have one domicile at a time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 10 ii. The domicile of origin is to be given considerable weight, and is not easily displaced. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 10 iii. Criteria to adopt a domicile of choice. . . . . . . . . . . . . . . . . . . . . . . Page: 11 iv. The sole or chief place of residence may become a domicile of choice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 14 v. Indefinite residence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 15 A. Living out ones days. . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 17 B. No fixed intention of leaving. . . . . . . . . . . . . . . . . . . . . . Page: 17 vi. Intention to change domicile must be expressed. . . . . . . . . . . . . . . Page: 18 vii. A party asserting a change in domicile bears the onus of proving the change. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 19 viii. Declared intentions on domicile are relevant.. . . . . . . . . . . . . . . . . Page: 19 d. Different legal treatments of the domicile of origin.. . . . . . . . . . . . . . . . . . Page: 20 i. Displacement of the domicile of origin. . . . . . . . . . . . . . . . . . . . . . Page: 20 ii. Revival of the domicile of origin. . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 22 A. Common-law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 23 B. Australian (Norfolk Island) law. . . . . . . . . . . . . . . . . . . . . . Page: 24 C. Operation of the Common-law and Australian rules. . . . . . Page: 25 D. Relevance of foreign law. . . . . . . . . . . . . . . Page: 26 E. Australian law of domicile.. . . . . . . . . . . . . . . . . . . . . . . . . Page: 26 F. Case-law that supports application of foreign law.. . . . . . . Page: 27 G. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 29 Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 29 a. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 29 b. The wills.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 30 c. Chronology.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 31 i. Alberta, 1924-1967. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 31 ii. Australia and Europe, 1967-1970. . . . . . . . . . . . . . . . . . . . . . . . . . Page: 31

3. 4.

5.

Page: 3 iii. iv. v. vi. vii. 6. 7. 8. 9. Norfolk Island (entrepreneur), 1970-1997. . . . . . . . . . . . . . . . . . . . Page: 33 Norfolk Island (philanthropist), 1997-2000. . . . . . . . . . . . . . . . . . . Page: 37 Norfolk Island vs. Canada, 2000-2003. . . . . . . . . . . . . . . . . . . . . . Page: 37 Illness and death, 2003-2004. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 38 Post-death developments, 2004-present.. . . . . . . . . . . . . . . . . . . . . Page: 39

Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 39 Domiciles Argued by the Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 40 Possible Unargued Domiciles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 40 Did Mr. Foote abandon his domicile of origin after 1967 in favour of a domicile of choice in Norfolk Island?.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 41 a. Significant evidence (1967-1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 41 i. Mr. Footes ongoing connections to Alberta and Canada. . . . . . . . Page: 41 ii. Mr. Footes post-1967 intention to make a life outside Alberta. . . Page: 42 iii. Foot Nort. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 43 iv. Norfolk Island residency status. . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 44 v. The 1970s Victoria residence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 44 v. The 1970s Hawaii residence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 46 vi. 1980s Edmonton apartment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 46 vii. Japan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 47 viii. Summary - post-1967 to 1984. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 47 b. Analysis - had Mr. Foote chosen a domicile in Norfolk Island between 19671984?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 47 i. 1967-1980. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 47 A. Transient period. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 48 B. Acquisition of a new residence. . . . . . . . . . . . . . . . . . . . . . Page: 48 C. Intention to have a new domicile - Foot Nort. . . . . . . . . . . Page: 49 D. Indefinite residence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 52 E. Future plans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 55 I. Ongoing association with Canada. . . . . . . . . . . . . . Page: 56 II. Retirement to Victoria (1970s). . . . . . . . . . . . . . . . Page: 62 III. Conclusion as to future plans.. . . . . . . . . . . . . . . . . Page: 63 F. Residency and citizenship. . . . . . . . . . . . . . . . . . . . . . . . . . Page: 63 G. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 65 ii. 1980-1984. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 66 c. Significant Evidence, 1984-2004.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 67 d. Analysis - had Mr. Foote chosen a domicile in Norfolk Island between 19842003?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 70 e. Conclusion - Adoption of Norfolk Island as a Domicile of Choice.. . . . . . Page: 70 Did Mr. Foote abandon his domicile of choice in Norfolk Island and establish a new domicile of choice in British Columbia?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 71

10.

Page: 4 a. Significant evidence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 71 i. Stated intentions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 71 ii. Sale of Foot Nort. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 73 iii. The Victoria condominium. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 73 iv. Tax and immigration considerations. . . . . . . . . . . . . . . . . . . . . . . . Page: 74 v. Philanthropic activities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 74 vi. Travel location and duration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 75 vii. Annes intentions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 75 vii. 2004 communications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 76 ix. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 77 Analysis - had Mr. Foote in 2001-2004 abandoned his Norfolk Island domicile of choice and adopted a new domicile in Victoria?. . . . . . . . . . . . . . . . . . . . . Page: 77 i. Relevant legal test. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 77 ii. Intention to obtain a new domicile.. . . . . . . . . . . . . . . . . . . . . . . . . Page: 78 A. 1997-2001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 78 B. 2001-2004. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 79 C. Mr. Footes intention to relocate to Victoria. . . . . . . . . . . . Page: 81 D. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 83 iii. Adoption of the Victoria Domicile. . . . . . . . . . . . . . . . . . . . . . . . . Page: 83 A. Chief or principal residences. . . . . . . . . . . . . . . . . . . . . . . . Page: 83 B. Characteristics of a chief or principal residence. . . . . . . . . Page: 86 C. Mr. Footes principal residence. . . . . . . . . . . . . . . . . . . . . . Page: 88 v. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 89

b.

11.

Did Mr. Foote abandon his Norfolk Island domicile of choice by steps to adopt a domicile in Victoria?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 89 a. Significant evidence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 89 b. Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 89 i. Legal meaning of abandonment of a domicile of choice. . . . . . . . . Page: 89 ii. Intention to abandon.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 93 iii. Permanent leaving the prior domicile. . . . . . . . . . . . . . . . . . . . . . . Page: 93 By returning to Edmonton for treatments and making a conscious decision to die in Alberta, did this establish a new domicile of choice in Alberta, or revive Mr. Footes domicile of origin in Alberta?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 94 a. Significant evidence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 94 b. Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 95 i. Travel for treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 95 ii. Relocation to die. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 96 iii. Abandonment of the Norfolk Island Domicile. . . . . . . . . . . . . . . . Page: 98 iv. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 98 Did Mr. Footes domicile of origin, Alberta, revive?. . . . . . . . . . . . . . . . . . . . . . . Page: 98 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 99

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13. 14.

Page: 5 15. 16. 17. Summary of legal principles of domicile considered.. . . . . . . . . . . . . . . . . . . . . . . Page: 99 Costs.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 100 Concluding Remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 100

1.

Introduction

[1] This decision results from the trial of the issue as to where the late Eldon Douglas Foote was domiciled on his death on May 17, 2004. To use non-legal terminology, a persons domicile indicates where, legally, a person lives - to what jurisdiction a person is most closely and persistently associated. [2] Domicile is, of course, fundamental to determining which jurisdictions law applies to a persons estate. One can have many assets in many jurisdictions throughout the world. One can have many residences throughout the world. One can even have many wills. But one can only have one domicile. [3] The issue arises out of applications by Mr. Footes widow Anne and five of his six children for advice and directions as to various aspects of Mr. Footes Estate. In an earlier decision, Foote Estate, 2007 ABQB 654, 431 A.R. 338, I held that the Alberta Court of Queens Bench had jurisdiction to hear their applications and to give directions on the matters in question. [4] Domicile is relevant to the administration of Mr. Footes Estate as his domicile will determine the personal law applicable to his Estate. This decision therefore pertains only to Mr. Footes domicile on May 17, 2004. 2. Parties and Positions a. The Family

[5] The application has been brought by Anne Foote (Mr. Footes widow), and five of his six children (Trudy, Douglas, Dean, Laurie, and Debbie) [the Children, and collectively, the Family]. One child, Robert, has taken no part in the proceedings. The Family seek to determine what law will apply to intended family relief claims. [6] The arguments advanced by the Family members are related but different. Anne Foote argues that Mr. Foote was domiciled in Alberta or British Columbia at the time of his death. The Children argue that Mr. Foote was domiciled in British Columbia, or in the alternative, Alberta. b. The Executor

Page: 6 [7] David Bentley, the Executor for Mr. Footes wills, argues that Mr. Foote was domiciled in Norfolk Island at the time of his death. c. The Beneficiaries

[8] The main beneficiaries of Mr. Footes Estate, the Edmonton Community Foundation and the Lord Mayor of Melbournes Charitable Fund, argue that Mr. Foote was domiciled in Norfolk Island at the time of his death. 3. Preliminary Considerations and Notes

[9] Since Mr. Foote was married three times, to avoid confusion I will describe his widow and former wives by their first names. [10] While not relevant to the issue of domicile, it should be noted that there are significant differences in the laws of Alberta, British Columbia and Norfolk Island with respect to family relief claims. In short, the degree and manner in which the Family may be able to make claims against Mr. Footes Estate will be affected by where I conclude he was domiciled. [11] Mr. Foote had significant connections to each of Alberta, British Columbia and Norfolk Island. He also had significant connections to Japan and Australia, but neither of those jurisdictions is argued as being Mr. Footes domicile or ever having been Mr. Footes domicile. Nevertheless, I will during this judgment briefly address these potential alternative domiciles, and indicate why they are irrelevant. 4. Law

[12] Before examining the facts of Mr. Footes life, I will first review the common-law of domiciles. There was little disagreement among the parties as to the relevant authorities and case-law. Most of the parties relied on the same cases, arguing the application of the facts to what was, for the most part, undisputed law. a. [13] Authorities

The following cases and authorities were submitted by the parties: 1. the Estate: Davies v. Davies (1985), 64 A.R. 73, 40 Alta. L.R. (2d) 203 (Alta. Q.B.); Henderson v. Muncey, [1943] 4 D.L.R. 758, 59 B.C.R. 312 (B.C.C.A.); Henderson v. Muncey, [1943] 4 D.L.R. 758, 59 B.C.R. 312 (B.C.C.A.); Montizambert Estate (Re), [1973] O.J. No. 1035 (QL) (Ont. S.C. (H.C.J.)); J. Castel & J. Walker, Canadian Conflict of Laws, 6th ed. (Markham, Ont.: LexusNexus Buttersworth, 2005); A. V. Dicey & J. C. Morris, The Conflict of Laws, 12th ed. (London: Sweet & Maxwell, 1993); Graveson, Capacity to Acquire a Domicile, (1950) 3 International Law Quarterly; R.H. Graveson,

Page: 7 Conflict of Laws, 7th ed. (London: Sweet & Maxwell, 1974); Domicile Act 1982 (Cth.) [Australia]; 2. the Lord Mayor's Charitable Foundation: Battagin v. Battagin (1980), 28 A.R. 586 (Alta. Q.B.); Re Urquhart Estate (1990), 74 O.R. (2d) 42, 38 E.T.R. 222 (Ont. H.C.J.), affirmed on other grounds 82 D.L.R. (4th) 604, 52 O.A.C. 21 (Ont. Div. Ct.); Schwebel v. Ungar, [1965] S.C.R. 148, 48 D.L.R. (2d) 644; Trottier v. Rajotte, [1940] S.C.R. 203, [1940] 1 D.L.R. 433; Hyland v. Hyland (1971), 18 F.L.R. 461 (N.S.W. Sup. Ct. (C.A)); Inland Revenue Commissioners v. Duchess of Portland, [1982] 1 Ch. 314; Ramsey v. Liverpool Royal, [1930] All E.R. 127 (H.L); Udny v. Udny (1869), L.R. 1 & Sc. 441 (H.L.); J. Castel & J. Walker, Canadian Conflict of Laws, 6th ed. (Markham, Ont.: LexusNexus Buttersworth, 2005); A.V. Dicey, J.C. Morris & L. Collins, The Conflict of Laws, 14th ed. (London: Sweet & Maxwell, 2006); the Edmonton Community Foundation: Battagin v. Battagin (1980), 28 A.R. 586 (Alta. Q.B.); Biggar v. Biggar, [1930] 2 D.L.R. 940, 42 B.C.R. 329 (B.C.S.C.); Cohen v. Cohen (1978), 19 O.R. (2d) 738, 86 D.L.R. (3d) 461 (Ont. Unif. Fam. Ct.); Cary v. Cary and Romanchuk, [1942] S.J. No. 20, [1942] 2 W.W.R. 389 (Sask. K.B.); Jones v. Kline (Jones), 1938 Carswell Alta. 54 (Alta. S.C.); Rattenbury Estate (re) (1936), 51 B.C.R. 321, [1936] 2 W.W.R. 554 (B.C.S.C.); Osvath-Latkoczy v. Osvath-Latkoczy, [1959] S.C.R. 751,19 D.L.R. (2d) 495; Re Urquhart Estate (1990), 74 O.R. (2d) 42, 38 E.T.R. 222 (Ont. H.C.J.), affirmed on other grounds 82 D.L.R. (4th) 604, 52 O.A.C. 21 (Ont. Div. Ct.); Trottier v. Rajotte, [1940] S.C.R. 203, [1940] 1 D.L.R. 433; Waggoner v. Waggoner, [1956] A.J. No. 22, 20 W.W.R. 74 (Alta S.C. (T.D.)); Attorney-General v. Fitzgerald, [1856] S.V. 25 L.J. Ch. 743; Bell v. Kennedy (1868), L.R. 1 Sc. & Div. 441; Flynn v. Flynn [1968], 1 All E.R. 49; Hyland v. Hyland (1971), 18 F.L.R. 461 (N.S.W. Sup. Ct. (C.A.)); Re Annesley, [1926] Ch. 692; Re Lam Kiu Wong and the Secretart To the Department of Social Security, [1986] AATA 45; Ross v. Ross, [1930] A.C. 1; Udny v. Udny (1869), L.R. 1 & Sc. 441 (H.L.); J. Castel & J. Walker, Canadian Conflict of Laws, 6th ed. (Markham, Ont.: LexusNexus Buttersworth, 2005); Domicile Act 1982 (Cth.) [Australia]; and Anne Foote: Chochinov v. Davis; Re Zilberman Estate (1980), 113 D.L.R. (3d) 715, 4 Man.R. (2d) 325 (Man. C.A.); Gillespie v. Grant (1992), 132 A.R. 288, 4 Alta. L.R. (3d) 122 (Alta. Surr. Ct.); Trottier v. Rajotte, [1940] S.C.R. 203, [1940] 1 D.L.R. 433; Fedeluk v. Fedeluk (1968), 63 W.W.R. 638 (Alta. S.C. (A.D.)); Re Urquhart Estate (1990), 74 O.R. (2d) 42, 38 E.T.R. 222 (Ont. H.C.J.), affirmed on other grounds 82 D.L.R. (4th) 604, 52 O.A.C. 21 (Ont. Div. Ct.); Re Annesley, [1926] Ch. 692; Winans v. A.G., [1904-7] All E.R. Rep. 410; Bowie v. Liverpool Royal Infirmary, [1930] All E.R. Rep. 127 (H.L.), Plummer v. IRC, [1988] 1 W.L.R. 292; J. Castel & J. Walker, Canadian Conflict of Laws, 6th ed. (Markham, Ont.: LexusNexus Buttersworth, 2005); A.V. Dicey, J.C. Morris & L. Collins, The Conflict of Laws, 14th ed. (London: Sweet & Maxwell,

3.

4.

Page: 8 2006); G.C. Cheshire, P.M. North, J.J. Fawcett & J. Carruthers, Cheshire, North & Fawcett Private International Law, 14th ed. (London: Oxford University Press, 2008). 5. The Children: Re Corlet and Isle of Man Bank (No. 2), [1938] 3 D.L.R. 800, [1938] 3 W.W.R. 20 (Alta. S.C.), Application of the lex fori

b.

[14] The law is clear that when determining issues of domicile, the court is to apply the law of the jurisdiction where the issue of domicile is raised, the lex fori. In Re Annesley at p. 705, Russell J. stated the rule in this manner: I would prefer to follow what I have always considered the true view - namely, that the question whether a person is or is not domiciled in a foreign country is to be determined in accordance with the requirements of English law as to domicil, irrespective of the question whether the person in question has or has not acquired a domicil in the foreign country in the eyes of that country. [Emphasis added] [15] This rule has been endorsed and applied in modern Canadian cases, for example: Chochinov v. Davis; Re Zilberman Estate, at para. 16: Whether Esther Zilberman was domiciled in Manitoba or Israel is in dispute. The plaintiff alleges that Mrs. Zilberman was domiciled in Manitoba until the date of death; while the defendants allege that she chose Israel as her domicile. I agree with the conclusion of the learned Chief Judge that, on the authority of In re Annesley, [1926] 1 Ch. 692, whether the deceased acquired a domicile of choice other than Manitoba should be decided by Manitoba law. If it is decided that Manitoba remained her domicile, Manitoba would be the appropriate forum to make the primary grant of representation. [Emphasis added.] Gillespie v. Grant, at para. 56: More importantly, the question of whether the Deceased abandoned his Alberta domicile and acquired a British Columbia domicile must be determined in accordance with the requirements of Alberta Law. The authority for this proposition is found in the case of Re Annesley; Davidson v. Annesley, [1926] 1 Ch. 692, at 705 ff. [Emphasis added.] [16] General conflict of law authorities also follow the Re Annesley rule, see for example: J. Castel & J. Walker, at p. 4-2; A.V. Dicey, J.C. Morris & L. Collins, at p. 129; and G.C. Cheshire Cheshire, P.M. North, J.J. Fawcett & J. Carruthers, at p. 157. c. Domicile and legal principles on domicile

Page: 9 [17] A good starting point is to look at the concept of domicile. Domicile is relevant to a persons personal law - the law governing the persons status (such as for divorce purposes) and the persons property (such as for estate purposes and in some jurisdictions, taxation). [18] A persons domicile is independent of their nationality: [i]ndividuals can change their domicile without changing their nationality, and they can change their nationality without changing their domicile. (J. Castel & J. Walker, at p. 4-5). [19] A person has one domicile at any point in their life, no matter what their circumstances or actions. That domicile may change from time to time, but there is always only one domicile for a person. A new domicile displaces an older domicile. The circumstances into which one is born (generally, parental domicile) dictate a persons first domicile, which is known as a domicile of origin. Other domiciles are ones in which a person has chosen to live, and are called domiciles of choice. [20] The domicile concept has been described in Re Montizambert Estate, [1973] O.J. No. 1035 (QL) (Ont. S.C. (H.C.J.)). There, Lerner J. had to determine whether the deceased was domiciled in Quebec, Ontario or England, and therefore embarked on a review of the life and travels of the 90 year old intestate. [21] He referred to two English cases, Udny v. Udny, (1886), L.R. 1 Sc. & Div. 441 (H.L.) and Estate of Fuld (No. 3), [1966] 2 W.L.R. 717: 15 The concept of domicile, as it is used in our law, is a rather artificial one. It is easy enough to describe. The classic description is to be found in the case of Udny v. Udny, (1886), L.R. 1 Sc. & Div. 441, where Lord Westbury stated at p. 458: "Domicil of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. This is a description of the circumstances which create or constitute a domicil, and not a definition of the term. There must be a residence freely chosen and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness; and it must be residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation. It is true that residence originally temporary or intended for a limited period, may afterwards become general and unlimited, and in such a case so soon as the change or purpose or animus manendi, can be inferred, the fact of domicil is established. A more modern definition can be found in the judgment of Scarman, J. in Re Fuld (No. 3), supra, at pp. 725-6 where he stated:

Page: 10 "In the light of these cases, the law, so far as relevant to my task, may be stated as follows: (1) The domicile of origin adheres - unless displaced by satisfactory evidence of the acquisition and continuance of a domicile of choice; (2) a domicile of choice is acquired only if it be affirmatively shown that the propositus is resident within a territory subject to a distinctive legal system with the intention, formed independently of external pressures, of residing there indefinitely. If a man intends to return to the land of his birth upon a clearly foreseen and reasonably anticipated contingency, e.g., the end of his job, the intention required by law is lacking: but, if he has in mind only a vague possibility, such as making a fortune (a modern example might be winning a football pool), or some sentiment about dying in the land of his fathers, such a state of mind is consistent with the intention required by law. But no clear line can be drawn: the ultimate decision in each case is one of fact - of the weight to be attached to the various factors and future contingencies in the contemplation of the propositus, their importance to him, and the probability, in his assessment, of the contingencies he has in contemplation being transformed into actualities. (3) It follows that, though a man has left the territory of his domicile of origin with the intention of never returning, though he be resident in a new territory, yet if his mind be not made up or evidence be lacking or unsatisfactory as to what is his state of mind, his domicile of origin adheres. And, if he has acquired but abandoned a domicile of choice either because he no longer resides in the territory or because he no longer intends to reside there indefinitely, the domicile of origin revives until such time as by a combination of residence and intention he acquires a new domicile of choice." [22] There is no controversy among the parties over some of the commonly-accepted principles relating to domicile: i. A person always has a domicile, and a person can only have one domicile at a time

[23]

This principle is succinctly stated in J. Castel & J. Walker, at p. 4-2: Every individual is regarded as belonging, at every stage of his or her life, to some community consisting of all persons domiciled in a particular legal unit, be it a country, a state, or, in Canada, a province or territory. ... An individual might have no permanent home, but the law requires him or her to have a domicile. He or she might have more than one home, but he or she must have only one domicile for any one purpose. ii. The domicile of origin is to be given considerable weight, and is not easily displaced

Page: 11 [24] The domicile of origin, that is the domicile when one is born, has a special status in the common-law, and courts have required special indications that a person has abandoned their domicile of origin. This rule, and its requirements were indicated by the Supreme Court of Canada in Trottier v. Rajotte, at p. 207-208: 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 [[1930] A.C. 588, at 590.]: 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 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 [(1857) 20 D. 307, at 321.] in words unnecessary to repeat, which were expressly approved by Lord Halsbury in Marchioness of Huntly v. Gaskell [[1906] A.C. 56, at 66.]. And, to quote once more from Lord Macnaghten's judgment in Winans v. Attorney-General [[1904] A.C. 287, at 291.], he says: "And," says his Lordship (referring to Lord Westbury in Bell v. Kennedy [(1868) L.R. 1 Sc. App. 321.]) "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 domicils 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. [Emphasis added.] See also Bowie v. Liverpool Royal Infirmary, [1930] All E.R. Rep. 127 (H.L.); J. Castel & J. Walker, at p. 4-3; A.V. Dicey, J.C. Morris & L. Collins, at p. 132; and G.C. Cheshire, P.M. North, J.J. Fawcett & J. Carruthers, at p. 171. iii. Criteria to adopt a domicile of choice

[25] A domicile of choice may be acquired when a person forms an intention to permanently reside in a new jurisdiction, and puts that intention into effect by taking positive steps to move to this new jurisdiction and establish a permanent residence there. A new domicile of choice displaces any previous domicile of choice or the domicile of origin. In Trottier v. Rajotte, at p. 206, the Supreme Court of Canada described these two requirements in this manner:

Page: 12 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. [Emphasis added.] [26] This test thus includes two parts: a person being resident in their new domicile (a domicile of choice), and intending to make that location the persons permanent home for the indefinite future. Either alone is not sufficient to establish a domicile of choice. J. Castel & J. Walker describe this dual requirement at p. 4-4: Any individual not legally dependent upon another may acquire a domicile of choice by taking up residence in a country or province other than that of his or her domicile of origin with the intention of continuing to reside their indefinitely. A new domicile is acquired only when there is a fixed intention of establishing a permanent residence in some other country or province, and this intention has been carried out by actual residence there. The fact of residence at a particular place must coincide with the intention to remain. [Footnotes omitted.] See also pp. 4-4 to 4-6, and G.C. Cheshire, P.M. North, J.J. Fawcett & J. Carruthers, at p. 157; and A.V. Dicey, J.C. Morris & L. Collins, at p. 133. [27] The two criteria, location and intention, must be simultaneous. In Trottier v. Rajotte, the Supreme Court referred to Winans v. A.G. and at page 208 quoted the following passages from that case: To the same effect was the inquiry which Lord Cairns proposed for the consideration of the House in Bell v. Kennedy [(1868) L.R. 1 Sc. App. 30.]. 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?" [28] Further: 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? [29] The Supreme Court continued at p. 209: 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

Page: 13 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. [Emphasis added.] [30] Intention relates to where a person chooses to live, not that a person has chosen to leave a prior domicile (Udny v. Udny; Winans v. A.G., at 413): The question in such a case is not whether there is evidence of an intention to retain the domicil of origin, but whether it is proved that there was an intention to acquire another domicil. [Emphasis added.] [31] That same rule was stated in Re Annesley, at p. 701, but in the context that the required intention does not include a person seeking to change to a new domicile: The intention required is not an intention specifically directed to a change of a domicil, but an intention to reside in a country for an unlimited time. [Emphasis added.] [32] That choice must be voluntary, for example a soldier ordered to a new location would not, as a consequence, lose his or her previous domicile (Udny v. Udny, at p. 458): There must be a residence freely chosen and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness; ... [33] Lord Macnaghtan in Winans v. A.G., at p. 416 notes that intention to adopt a new domicile need not exist when a person moves to a new location. Rather, that intention can arise at a later point, and may be inferred to occur from a lengthy period of residency: Length of time is, of course, a very important element in questions of domicil. An unconscious change may come over a mans mind. If the man goes about and mixes in society that is not an improbable result. [34] That reasoning, where duration of residency implies a choice to obtain a domicile, should be balanced against the requirement that residence must be a choice. In Bowie v. Liverpool Royal Infirmary, the House of Lords concluded that a person had not obtained a new domicile of choice where that Lord Buckmaster observed, at p. 130:

Page: 14 The ties he ultimately established were those due to inaction. He never seems to have exercised any volition of his own expect a disinclination to move. It is true that a long-continued residence may in certain circumstances show that the domicil is changed though such intention did not originally exist. In my opinion, however, in this case the continued residence of George Bowie in Liverpool after his brothers death appears more probably attributable to his own lack of initiative and the disinclination of a many sixty-nine years of age to change his mode of life than to an intention to change his domicil. Such conduct is inadequate to discharge the burden of proof cast upon the appellant, as Lord MacNaughten said, in Winans v. A.-G. (4) ([1904] A.C. at p. 291), an intention to change a docimil of origin is not to be inferred from an attitude of indifference or a disinclination to move increasing with increasing years. [Emphasis added.] Apathy and indifference is thus not a choice of domicile, but rather the lackthereof. See also Estate of Fuld (No. 3), at p. 726. [35] Intention is not always easily determined. In Re Montizambert Estate, Lerner J. observed: 19 The question of establishing whether or not a person has established a new domicile of choice can be remarkably difficult. The Court must examine a wide variety of factors. Lord Atkinson discussed the case of Winans v. A.G., supra, in Casdagli v. Casdagli, [1919] A.C. 145 and stated at p. 178: "In Winans' Case the tastes, habits, conduct, actions, ambitions, health, hopes and projects of Mr. Winans deceased were all considered as keys to his intention to make a home in England." In other words, the Court has to delve into the deceased's mind and while the proposition that "the state of a man's mind is as much a fact as the state of his digestion" may be a valid statement of law, it is certainly not a valid statement of reality because the Court cannot really know what went on in the mind of a person who died almost ten years ago and, therefore, we are left in the position of having to infer, from skimpy evidence, whether or not this deceased intended to remain indefinitely in England. 20 Therefore, all that can be done is to examine the limited evidence as to the facts of the deceased's life and draw the most reasonable inferences possible. [Emphasis added.] [36] I agree with this approach. The principled method by which intention must be assessed is to make reasonable inferences where-ever possible from the established facts. iv. The sole or chief place of residence may become a domicile of choice

Page: 15 [37] When testing for adoption of a domicile of choice, residence means no more than personal presence in a country, state, province or territory other than casually or as a traveller (J. Castel & J. Walker, at p. 4-4). However, many people may have multiple residences, and a domicile of choice may only be established in the persons chief place of residence. This rule flows from the English case of Udny v. Udny, at p. 458: Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. [Emphasis added.] [38] More recently Hoffman J. in Plummer v. IRC, [1988] 1 W.L.R. 292 (Ch.D.) at p. 295 has restated that rule as follows: I infer from this sentence ... that a person who retains a residence in his domicile of origin can acquire a domicile of choice only if the residence established in that country is his chief residence. [Emphasis added.] [39] While no Canadian cases appear to have specifically discussed the characteristics of a chief residence or applied this rule, Udny v. Udny is clearly acknowledged as good law by the Supreme Court of Canada in Trottier v. Rajotte. I later explore the characteristics of a chief residence in greater detail, however I note that a persons chief residence is best identified by tangible factors, including economic links between a residence and its occupant. What might be described as a sentimental attachment to a potential chief residence should have little, if any, weight. v. Indefinite residence

[40] While a persons location and residence is typically easily established, the mental component of the two-part domicile of choice test identified in Trottier v. Rajotte is more complex. It is clear that temporary residency in another jurisdiction, for example for employment purposes or for a limited time, will not displace a domicile of origin (or a domicile of choice). Duff C.J.C. in Trottier v. Rajotte, at p. 208 surveys the case-law relating to those points: As Lord Westbury says in Udny v. Udny [(1869) L.R. 1 Sc. App. 441.] (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 [(1885) 10 App. Cas. 692.] (I am quoting from the head-note)

Page: 16 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. ... 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." [41] Cohen v. Cohen provides an example of a Canadian court applying this distinction, when the Court decided a South African student could not acquire a Canadian domicile of choice so long as his stay in Canada was governed by a student visa. Similarly, in Re Urquhart Estate a mans various work assignments to different locations did not represent his taking on a new domicile (at paras. 64-66). [42] Further, a general intention to return at some future, unspecified time to the domicile of origin will not prevent a domicile of choice from being established. In Osvath-Latkoczy v. Osvath-Latkoczy, the Supreme Court of Canada concluded that a Hungarian immigrant had established a domicile of choice in Canada despite his stated intention that he would ... go back to Hungary if the Russians were out of Hungary. The immigrant also stated ... that he had no hope or expectation that political conditions would permit of his return. [43] Judson J. noted: In spite of the circumstances in which this man left his native land, there is a preponderance of evidence in this case that he came here as an immigrant intending to settle. Even if the answer does amount to a declaration of intention to return to Hungary for permanent residence, of which I have serious doubt in view of qualifications subsequently made, the contingency of his return was, in his opinion, so remote and uncertain that it should not prevent the Court from declaring that he had acquired a domicile of choice in Ontario. [Emphasis added.] [44] More recent English case-law makes the same distinction. In Re Fuld (No. 3), at pp. 725-6, Scarman J. observes that a future contingency is relevant where it is clearly foreseen and reasonably anticipated: ... a domicile of choice is acquired only if it be affirmatively shown that the propositus is resident within a territory subject to a distinctive legal system with the intention, formed independently of external pressures, of residing there indefinitely. If a man intends to return to the land of his birth upon a clearly foreseen and reasonably anticipated contingency, e.g., the end of his job, the intention required by law is lacking: but, if he has in mind only a vague possibility, such as making a fortune (a modern example might be winning a football pool), or some sentiment about dying in the land of his fathers, such a state of mind is consistent with the intention required by law. But no clear line can be drawn: the ultimate decision in each case is one of fact - of the weight to

Page: 17 be attached to the various factors and future contingencies in the contemplation of the propositus, their importance to him, and the probability, in his assessment, of the contingencies he has in contemplation being transformed into actualities. [Emphasis added.] [45] J. Castel & J. Walker characterize these future but irrelevant contingencies (at p. 4-5) as a continuing emotional attachment to some other country or province or an intention to return to live there upon some vague or improbable contingency. [46] What is meant by indefinite has been interpreted in a number of cases, but this is essentially a factual inquiry. Different case-law has applied different standards. A. Living out ones days

[47] The highest standard applied to establishing a domicile of choice has been requiring the intention to live out ones days in that jurisdiction. In Trottier v. Rajotte, at p. 207, the Supreme Court of Canada cites The Lauderdale Peerage, where the criterion is described as a person intending to have a specific residence for the rest of his natural life. In Bell v. Kennedy, the necessary duration was ending his days in that country. This kind of language is more common in older English case-law. That said, the Supreme Court of Canada in Trottier v. Rajotte at p. 214, tests whether a person had ... taken up his residence in the State of Connecticut with a fixed, settled determination of making his permanent residence in that state. [Emphasis added.] B. No fixed intention of leaving

[48] Other cases have imposed a lesser standard of intention - an intention to reside in the jurisdiction indefinitely, with no fixed intention of leaving. That standard is apparently what was applied by the Supreme Court of Canada in Trottier v. Rajotte, at p. 209: 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. [Emphasis added.]

[49] In Osvath-Latkoczy v. Osvath-Latkoczy, the court cited a principle stated in Lord v. Colvin, (1859), 4 Drew. 366 at 376, 62 E.R. 141,, which was adopted in Wadsworth v. McCord (1886), 12 S.C.R. 466 at 475, and followed in Gunn v. Gunn (1956), 18 W.W.R. 85, 2 D.L.R. (2d) 351:

Page: 18 That place is properly the domicile of a person in which he has voluntarily fixed the habitation of himself and his family, not for a mere special and temporary purpose, but with a present intention of making it his permanent home, unless and until something (which is unexpected or the happening of which is uncertain) shall occur to induce him to adopt other permanent home. See also Frey v. Heintzl Estate (1988), 24 B.C.L.R. (2d) 25, 9 A.C.W.S. (3d) 57 (B.C.S.C.). [50] The characteristics of a permanent home are not immediately obvious, particularly as to how that relates to an intention to live somewhere indefinitely, or for the rest of ones life. I will return to these apparently inconsistent authorities later in this judgment. vi. Intention to change domicile must be expressed

[51] It is certainly possible to abandon a domicile of choice or origin in favour of a new domicile of choice, but such change involves more than a change in intention and requires some act of abandonment. That requirement to take some tangible step to abandon was identified in Fedeluk v. Fedeluk as relating to the dual prerequisites to adopt a new domicile of choice: 12 It is clear that the abandonment of a domicile of choice requires, as does its acquisition, the combination of factum and intention: See Jones v. Kline [1938] 3 WWR 65, at 75 (Alta.) and other cases cited at p. 409 of Power on Divorce, 2nd ed. The intention to abandon is insufficient in itself to effect the abandonment so long as the person remains within the domicile or territory: See Zanelli v. Zanelli (1948) 64 TLR 556, 92 Sol J 646. [Emphasis added.] [52] This rule was stated by the Supreme Court of Canada in Trottier v. Rajotte, at p. 209, in relation to the loss of a domicile of origin: ... 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 ... [Emphasis added.] [53] Howson J. in Jones v. Kline (Jones), at para. 16, stated the rule as: ... in order to lose the domicile of choice and revive the domicile of origin, it is not sufficient for the person to form the intention of leaving the domicile of choice, he must actually leave it with the intention of leaving it permanently. [Emphasis added.] [54] In Re Urquhart Estate the fact a deceased man had not taken any steps to abandon a domicile, where the residence of that domicile was no more than a room in another persons

Page: 19 home, was sufficient to keep the man associated with that domicile. Even had the deceased intended to abandon that domicile, ... the maintaining of the room provides a basis for the argument that Urquhart continued to reside in Ontario until his death. (at para. 66). [55] While the South African student in Cohen v. Cohen indicated he intended to move to Canada and make his home there, he had not yet taken steps to enter Canada as an immigrant, and therefore could not have yet abandoned his South African domicile, even though he was resident in Canada at the time of his trial: Mr. Cohen in his affidavit indicates that on the completion of his study, he intends to depart from Canada. Now, it seems to me that if Mr. Cohen wishes to be a permanent resident of Canada, he has committed himself to leaving this country and reapplying. Accordingly, it is impossible for him to have any present intention of indefinitely staying in Canada, and of making Canada his permanent home. He has undertaken to leave this country and to apply to become a resident at a future time. His intention to acquire a new domicile of choice in Canada is clearly a future one, contingent upon acceptance of him by the Canadian authorities. [Emphasis added.] [56] Residence in a place is also, in itself, prima facie evidence that a person intends to reside and live in that location: Fedeluk v. Fedeluk, at para. 9. Of course, that kind of evidence can be rebutted, particularly if the reason for residence in that place has an alternative explanation. [57] See also Cary v. Cary and Romanchuk, at para. 6 vii. A party asserting a change in domicile bears the onus of proving the change

[58] Common-law case-law establishes that the party who asserts a domicile has changed bears the onus to prove that a person has abandoned a previous domicile of origin or choice, and adopted a new domicile of choice. This rule was established in The Lauderdale Peerage (1885), 10 App. Cas. 692, at p. 739, The onus of proving a change of domicile, animo et facto, lies upon those who assert it. See also Bell v. Kennedy; Winans v. A.G. [59] This rule has been cited and applied in number of Canadian cases: Wadsworth v. McCord (1886), 12 S.C.R. 466; Jones v. Kline (Jones), at para. 15; Battagin v. Battagin, at para. 15; Frey v. Heintzl Estate; and Waggoner v. Waggoner, at para. 14. viii. Declared intentions on domicile are relevant

[60] Declarations of intention are properly regarded, although the persons own evidence in court may be viewed with suspicion. Rather, as stated in Biggar v. Biggar, at p. 332, it is conduct that is the focus for analysis:

Page: 20 Two questions arise in this case - First, did the respondent renounce his British Columbia domicil? And second, if so, did he acquire a permanent bona fide domicil in Oregon? In determining such questions it is the conduct of the party which is the chief matter to be kept in mind and not his expressions of intention. [Emphasis added.] [61] In any event, declarations must be examined by considering the persons to whom, the purposes for which, and the circumstance in which they are made: Bell v. Kennedy. In Cary v. Cary and Romanchuk, Bigalow J. observed in relation to domicile that one cannot always take the statement of the party interested as to his intentions and must look at the circumstances. [62] This principle was explained by the House of Lords in Ross v. Ross, at pp. 6-7: Declarations as to intention are rightly regarded in determining the question of a change of domicil, but they must be examined by considering the person to whom, the purposes for which, and the circumstances in which they are made and they must further be fortified and carried into effect by conduct and action consistent with the declared expression. So regarded the evidence of declared intention fails to satisfy and is not established by the proved facts. [Emphasis added.] [63] See also Re Annesley, where a testator had stated her domicile in a will, but that fact was not determinative. d. Different legal treatments of the domicile of origin

[64] The common-law has historically treated the domicile of origin in a different manner than a domicile of choice. Several of these distinctions are relevant or were argued before me. i. Displacement of the domicile of origin

[65] English common-law authorities have historically presumed that a domicile of origin has a special weight, and that where a party alleged that the domicile of origin has been displaced, not only does that party have the onus to prove the domicile of origin has been abandoned in favour of a domicile of choice, that party must also meet a higher standard of proof for that fact. In short, the historical common-law position is that it is easier to displace a domicile of choice than a domicile of origin. For example, in Trottier v. Rajotte, at pp. 208-209, the Supreme Court of Canada cited passages from the English House of Lords cases of Ramsey v. Liverpool Royal, and Winans v. A.G.: Ramsey v. Liverpool Royal, at p. 590: 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 is a serious matter not to be lightly assumed, for it results in a complete change of law in relation to two of the

Page: 21 most important facts of life, marriage and devolution of property. This is admirably expressed by Lord Curriehill in Donaldson v. McClure [(1857) 20 D. 307, at 321.] in words unnecessary to repeat, which were expressly approved by Lord Halsbury in Marchioness of Huntly v. Gaskell [[1906] A.C. 56, at 66.]. Winans v. A.G., at p. 291: ... "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 domicils 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. [66] In Winans v. A.G., at p. 412, Lord MacNaghten stated a domicile of origin ... differs from domicil of choice mainly in this - that is character is more enduring, its hold stronger and less easily shaken off. See also J. Castel & J. Walker, at pp. 4-9 to 4-11. [67] Interestingly, in Winans v. A.G., at p. 413, the type of domicile also affects the standard of proof. A change between domiciles within a country (for example, relocation between Canadian provinces) has a lower requirement for proof than a new domicile which is in a different country. See also J. Castel & J. Walker, at pp. 4-9 to 4-10, Walsh v. Herman (1908), 13 B.C.R. 314, 7 W.L.R. 388 (B.C.S.C.). [68] Other authorities (Frey v. Heintzl Estate, and Power on Divorce, at p. 290) are somewhat to the contrary in that both authorities describe the standard of proof necessary to establish any change in domicile as being on a balance of probabilities and not on the criminal burden. [69] There is a third line of authority, which flows from comments of Scarman J. in the Estate of Fuld (No. 3), at p. 726: The formula of proof beyond reasonable doubt is not frequently used in probate cases, and I do not propose to give it currency. It is enough that the authorities emphasize that the conscience of the Court (to borrow a phrase from a different context, the judgment of Parke, P.B. in Barry v. Butlin) must be satisfied by the evidence. The weight to be attached to evidence, the inferences to be drawn, the facts that justifying the exclusion of doubt and the expression of satisfaction, will vary according to the nature of the case. Two things are clear - first, that unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists: and secondly, that the acquisition of a domicile of choice is a serious matter not to be slightly inferred from slight indications or casual words. [Emphasis added.]

Page: 22 [70] This highly contextual approach of Scarman J. in Estate of Fuld (No. 3) has been applied by courts to vary the standard of proof to take into account factors such as different language, climate, ethnic, cultural or religious characteristics of the old and alleged new domiciles: J. Castel & J. Walker, at pp. 4-9 to 4-10. [71] The Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 has recently clarified the nature of the civil standard of proof. Rothstein J. reviewed case-law which has suggested that in a civil suit certain legal and factual questions require a different standard of proof. He concludes, at para. 49: ... I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred. [Emphasis added.] [72] While Justice Rothstein does not specifically address the law of domicile in F.H. v. McDougall, I conclude that there are really only two standards of proof, and that the old notion of any intermediate or more rigorous civil standard is outdated. It is settled law in Canada that there are in fact only two standards of proof - the balance of probabilities and proof beyond a reasonable doubt. Following F.H. v. McDougall the concept of an intermediate burden greater than the balance of probabilities and less than beyond a reasonable doubt - formerly applied in civil cases alleging fraud (for example) and domicile of origin displacement cases (by inference) has been eliminated. [73] This changes Canadian common-law of domicile in several ways. The same standard of proof, a balance of probabilities, is required to demonstrate either: 1. 2. 3. displacement of a domicile of origin or a domicile of choice; displacement of a domicile within the same or to a different country; and displacement of a domicile by a second domicile with substantially different language, climate, ethnic, cultural or religious characteristics.

[74] Case-law to the contrary (for example, Trottier v. Rajotte, Ramsey v. Liverpool Royal, Winans v. A.G., Estate of Fuld (No. 3), Walsh v. Herman ) is no longer good law in Canada. In my analysis that follows I will therefore test Mr. Footes alleged changes of domicile on the civil standard, a balance of probabilities. ii. Revival of the domicile of origin

[75] The application of lex fori was one of the issues in my earlier decision (Foote Estate, 2007 ABQB 654, 431 A.R. 338), where it had been argued on behalf of the Estate, the Edmonton Community Foundation and the Lord Mayors Fund that this court should decline jurisdiction over the issues raised by Anne Foote and the Foote children for various reasons, including that

Page: 23 Albertas laws on domicile were more favourable to the position being advanced by the Applicants, and that gave them an unfair advantage if the issue were to be heard in Alberta. The specific distinction identified by the Estate, the Edmonton Community Foundation and the Lord Mayors Fund is in relation to the special character of the domicile into which one is born, the domicile of origin. In this sense, these parties argued this court should apply the principle of renvoi, and apply the law of Norfolk Island. This argument is essentially that the Applicants ought not be able to obtain advantage through forum shopping. [76] That position (advanced by the Executor, the Edmonton Community Foundation and the Lord Mayors Charitable Fund), was based on the treatment of the domicile of origin, specifically, how Canadian and Norfolk Island (Australian) laws treat the domicile of origin in a somewhat different manner. A. Common-law

[77] Under the common-law, which is the law that applies in most of Canada, the domicile of origin is given special status. A domicile of origin can be displaced by a new domicile chosen by a person, but if the domicile of choice is lost or abandoned for some reason, the domicile of origin revives unless and until a new domicile of choice is established. A person can never be without a domicile, and the domicile of origin, though displaced in favour of a domicile of choice, essentially remains latent and is automatically revived if no new domicile of choice is immediately created: J. Castel & J. Walker, at p. 4-3; A.V. Dicey, J.C. Morris & L. Collins, at pp. 151-152; G.C. Cheshire, P.M. North, J.J. Fawcett & J. Carruthers, at p. 173. [78] It is also clear that, in regards to the revival of the domicile of origin, Alberta law is the common-law. Regardless of the intentions of the person, domicile of origin revives when a domicile of choice is abandoned without establishing a new domicile of choice: Wadsworth v. McCord, citing Udny v. Udny, at 457 ... the domicile of origin is the creature of law, and independent of the will of the party, it would be inconsistent with the principle on which it is by law created and ascribed, to suppose that it is capable of being by the act of the party entirely obliterated and extinguished. It revives and exists whenever there is no other domicile, and it does not require to be regained or reconstituted animo et facto, in the manner which is necessary for the acquisition of a domicile of choice. [Emphasis added.] Battagin v. Battagin, citing Power on Divorce, on p. 292 A domicile of choice can be changed either by its abandonment without the acquisition of a new domicile of choice, or by the acquisition of a new domicile of choice. If a domicile of choice is abandoned without another domicile of choice being simultaneously acquired, the domicile of origin revives pending the acquisition of another domicile of choice; in other words, the domicile of origin is

Page: 24 always in abeyance or dormant. It revives and operates whenever there is no other domicile and does not require to be regained animo et facto, in the manner which is necessary for a domicile of choice. The abandonment of a domicile of choice requires as does its acquisition, a combination of factum and intention. The intention to abandon is insufficient in itself to effect the abandonment as long as the person remains within the domiciliary territory and departure therefrom is insufficient unless it is accompanied or followed by the intention. . . . the intention must be one to abandon permanently; the intention to remain away temporarily, whether with or without a definite purpose is insufficient. [Emphasis added.] [79] Abandonment requires two parts: intention to leave a domicile of choice, and actually permanently leaving that domicile: Waggoner v. Waggoner, at para. 15: Now, once a domicile of choice has been established in order to lose it and revive the domicile of origin, it is not sufficient for the person to form the intention of leaving the domicile of choice but he must actually leave it with the intention of leaving it permanently: In re Marrett; Chalmers v. Wingfield (1887) 36 Ch D 400, at 407. [Emphasis added.] [80] The common-law rule remains in other Canadian jurisdictions: Re Montizambert Estate, at para. 16; McCallum v. Ryan Estate, [2002] O.T.C. 273 at para. 23, 45 E.T.R. (2d) 113 (Ont. Sup. Ct. J.); Rattenbury Estate (re). B. Australian (Norfolk Island) law

[81] The common-law rule that domicile of origin may revive has been removed in Australia by legislation. Section 7 of Australias Domicile Act 1982 provides: The rule of law whereby the domicile of origin revives upon the abandonment of a domicile of choice without the acquisition of a new domicile of choice is abolished and the domicile a person has at any time continues until he or she acquires a different domicile. [82] Under Norfolk Island law, the domicile of origin may retain its special character as being difficult to dislodge, but once it has been replaced by a domicile of choice, the domicile of origin ceases to have any relevance. A domicile of choice remains a persons domicile unless and until it has been replaced by a new domicile of choice. That new domicile of choice might be the domicile of origin, but there is no presumption in favour of the domicile of origin, and once replaced, the domicile of origin is only of historical or chronological interest.

Page: 25 [83] Under Norfolk Island law the concept of abandonment of a domicile is irrelevant. Any domicile remains until a new domicile of choice is established. Similarly, a persons domicile survives where residence is lost, for example by expulsion. [84] One aspect of the law of domicile that is the same - whether it be under the common-law or under Norfolk Island law - is the law relating to the acquisition of a domicile of choice. A domicile of choice is established by forming an intention to indefinitely reside in a particular jurisdiction, and by actually putting that intention into effect by taking positive steps to move there and establish a ongoing residence there. C. [85] Operation of the Common-law and Australian rules

This difference in laws can be illustrated by two simple examples: 1. Common-law (Canada): Mary is born in England, of English domiciled parents. Her domicile of origin is England. She does not like England, and decides to leave, never to return. She emigrates to Alberta, buys property here, becomes a permanent resident of Alberta, without becoming a Canadian citizen, and works here for 35 years. She becomes domiciled in Alberta, displacing her English domicile of origin. When Mary retires from work, she becomes disillusioned with Canadas winters, and decides to retire to Provence. She sells all of her possessions in Canada, intent on going to France, buying property there and spending the rest of her days there. Mary leaves Alberta, planning to never return. She is excited about her new life in Provence. She flies to Frankfurt, but has a heart attack in Frankfurt airport before her flight to Nice departs. She dies in hospital in Frankfurt, without having ever spent a night in France. Where was Mary domiciled on her death? The common-law would say England, even though Mary had left England never to return. She had abandoned her Canadian domicile (a domicile of choice) by leaving with the intent to not return. Despite her intent to establish her new permanent residence in France, she died before she got there. She could not acquire a new domicile of choice merely by intent. She needed to actually begin to reside in France before she could establish a domicile of choice there. So her domicile of origin, England, revived. 2. Norfolk Island (Australian) law: Under Norfolk Island law, Mary would have acquired a Canadian domicile of choice, in favour of her domicile of origin. Despite her departure from Canada and her fixed intention to not return and her plan to move to France, she did not lose her Canadian domicile of choice prior to her death. She would only have done so on her arrival in France. Her domicile of origin, England, would not revive.

In summary, neither the common-law nor Norfolk Island law would have had Mary domiciled in France at the time of her death, despite her intention of moving there and establishing her permanent residence there. That would not occur until she actually began to reside in France.

Page: 26 D. Relevance of foreign law

[86] As I have explained above, the commonly-accepted principle is that the lex fori is used to determine questions of domicile. That is the common-law position, and has been well accepted in Alberta: Gillespie v. Grant, at para. 56. [87] Counsel for the Edmonton Community Foundation submits that I should give some effect to the laws of Norfolk Island in the event that I find that Mr. Foote became domiciled in Norfolk Island. In that circumstance, she submits that, despite preferring the lex fori, I should apply Norfolk Island law and not apply the common-law. In other words, if Mr. Foote became domiciled in Norfolk Island as his domicile of choice, he would not lose that domicile until he had established a new domicile of choice. An intention to leave Norfolk Island, and even taking steps to carry out that intention, would not result in a loss of the Norfolk Island domicile until a new domicile of choice had been acquired. E. Australian law of domicile

[88] Prior to examining the substance of this argument, it is useful to briefly compare the Australian (Norfolk Island) and Alberta laws of domicile. As a common-law jurisdiction, Australian cases are of persuasive value, to the extent that they relate to common-law principles. As I have mentioned earlier, Australia is a common-law jurisdiction, but as I discussed above, in Australia the common-law doctrine of revival was abolished by the Domicile Act 1982, s. 7. That is a significant difference. However, other Australian jurisprudence cited to the court shows very little difference from Canadian and Alberta common-law principles in respect to domicile: 1. Onus is the same there, as in England and Alberta, being on the person asserting a change of domicile: Fremlin v. Fremlin, (1913), 16 C.L.R. 212). The burden is on the balance of probabilities: Kaur & Narula, [2007] FMCAfam 657. Australian (and Norfolk Island law) indicates the acquisition of a domicile of choice requires a true, fixed, and permanent home acquired by a person who intends to surrender his or her old domicile and establish a new domicile, and who is physically and lawfully present in that place with the intention of remaining there indefinitely: Kaur. v. Narula. That is essentially the Alberta rule, as described above. In Miller v. Teale, (1954), 92 C.L.R. 406, the court indicated the two required elements to acquire a domicile of choice - physical presence and intention to make a home indefinitely - must occur at the same time, although the length of presence is immaterial. It need be no more than a split second. Again, this is essentially the same requirement in Alberta. Home is the place in which ones domestic affections are centred, or the place where the centre of gravity of ones life is to be found: Geothermal Energy New Zealand Ltd. V. Commissioner of Inland Revenue (1979), 2 N.Z.L.R. 324 and

2.

3.

4.

Page: 27 Re Erasti Petropoulos and Director-General of Social Security, [1984] AATA 334. I believe this definition is analogous to the indefinite duration and principle place of residence definition described by the Supreme Court of Canada in Trottier v. Rajotte, at p. 209. 5. More weight is generally given to the actions of the person involved than to his or her declarations: Fremlin v. Fremlin, Hyland v. Hyland, Re Lam Kiu Wong and the Secretary to the Department of Social Security. Priority of act over stated intent is also the principle in Alberta.

[89] In summary, the chief difference between Alberta and Australian law is that in Australia the common-law has been overruled in regards to the possible revival of a domicile of origin. Is that difference relevant, when Mr. Foote was (arguably) domiciled in a location governed by Australian law? F. Case-law that supports application of foreign law

[90] Counsel for Edmonton Community Foundation has cited Castel & J. Walker, at p. 4-2 for the proposition that, in certain instances, Canadian courts have taken note of foreign law that relates to domicile: Canadian courts determine domicile by reference solely to the lex fori. A decision of a court in a foreign country or province that an individual is or is not domiciled in that country or province is immaterial. Similarly, in determining domicile Canadian courts will disregard foreign legislation imposing restrictions on the acquisition of a domicile in the foreign country. However, when applying the lex fori to determine an individuals domicile, Canadian courts have adopted a flexible attitude and have tended to take into consideration the purpose and policies underlying the use of domicile as a connecting factor in the particular case. [Emphasis added, footnotes omitted.] [91] I note that this expert authority does not identify case-law to support this proposition, though arguably that is provided by Re Montizambert Estate. [92] Re Montizambert Estate provides an instance where the law of a jurisdiction other than the lex fori was be applied in certain circumstances. In Re Montizambert Estate, at para. 32, Lerner J. refused to revive a domicile of origin, concluding the result was not merely anomalous, but totally divorced from reality: Having decided earlier that the deceased abandoned whatever "domicile of choice she had in Ontario after leaving there in 1912, if the deceased was not domiciled in England at the time of her death, it would follow that her domicile of origin, i.e. Quebec, revives. Dicey - The Conflict of Laws, 8th ed. p. 106. Writers on the problem of conflicts of law have noted that the doctrine of revival of domicile of origin can produce anomalous results, and this would be a case in which such an

Page: 28 anomalous result would obtain. With the exception of the fact that her employer was the Montreal Gazette and that her sister, who died in 1946, appears to have died in Quebec, there is no evidence to suggest that the deceased had any real connection with Quebec after 1882, some 82 years before her death. To suggest that her personal law should be the law of a jurisdiction which the deceased left 82 years before her death is to defy common sense. While the law of domicile is sometimes, by its nature, artificial and confusing, it ought not to be totally divorced from reality. [93] There is some attractiveness to that proposition. It seems artificial and arbitrary, and perhaps arrogant, to ignore the laws of the domicile of choice when determining whether that domicile of choice has been lost. The person in question has chosen that jurisdiction as the jurisdiction governing his or her personal law. Why would that jurisdictions law not be the law applicable to whether or not that jurisdiction remained the domicile of choice, or had been abandoned or replaced? [94] The answer is historical, and revolves on certainty. Certainty and predictability are among the most important features of a system of law. The common-law has held since at least the mid 19th centure that the lex fori will be applied to questions of domicile. The lex fori is generally known, and the lex fori may be a factor in determining the jurisdiction in which to commence legal proceedings. [95] If the common-law were changed to provide that the law of the last domicile is to govern any changes in that status (as is being argued), that rule would have to be modified to the extent that it would not be contrary to public policy to apply the laws of a foreign jurisdiction in the jurisdiction where a matter was heard. [96] That would lead to less certainty and predictability. Matters of public policy are highly discretionary and the results of public policy arguments are unpredictable. While it might be accepted for the purposes of this case that there is no public policy reason why the laws of Norfolk Island should not be applied, the same cannot be said for the laws of other countries. [97] I will therefore apply the common-law doctrine of revival of the domicile of origin to the issues in this case. That said, I do not think that Re Montizambert Estate was incorrectly decided, however I conclude that case indicates that where a revival of the domicile of origin produces what is, essentially, an absurd result, then a common-law judge has a residual authority to instead conclude that a person has retained their last domicile of choice. An absurd result would be, for example, where the revived domicile of origin had absolutely no relevance to a persons life, home, and activities. [98] Davies v. Davies (1985), 64 A.R. 73, 40 Alta. L.R. (2d) 203 (Q.B.) may be seen as authority in support of the proposition that the law of a domicile should be applied by foreign courts. However, that case was an unopposed divorce case, and D.C. McDonald J. issued a very brief judgment that applied Ontario law, rather than the lex fori, to the issue of the wifes (petitioners) domicile. The case cites no authority for departing from the long-standing

Page: 29 common-law application of the lex fori, and in my view is not good law on that issue. I decline to follow it. G. Conclusion

[99] Neither Re Montizambert Estate nor Davies v. Davies are binding authorities on this court. There is no pressing public policy need to change the application of the lex fori to matters of domicile. As a result, I conclude that where any case-law that suggests that the laws of another jurisdiction may be considered in determining questions of domicile, that case-law does not reflect the law of Alberta and I decline to follow that jurisprudence. [100] Further, and as will become clear in my determination of the facts that follows, this different treatment of the domicile of origin by the common-law and Norfolk Island law is essentially irrelevant and does not affect either my reasoning or my conclusion in this matter. In short, the Alberta and Norfolk Island laws of domicile that are relevant to my judgment are the same. As a consequence, no party has obtained any particular advantage or disadvantage from this matter being heard by an Alberta court. 5. Facts

[101] As with many legal proceedings, most of the relevant facts are not in dispute. In this case, while I heard evidence from a number of witnesses over a three week period, there are few facts in dispute. At the commencement of the trial, I was given an agreed statement of facts comprised of 107 paragraphs, and 87 sets of agreed documents, including correspondence sent and received by Mr. Foote. I was given a binder containing agreed laws of Norfolk Island. [102] Over the course of the trial, there were very few facts in dispute, and little controversy from the various witnesses. The disputes and arguments related mainly to the inferences to be drawn from the facts and the weight to be given to various actions and statements by the deceased over the nearly 40 years since Mr. Foote left Alberta to pursue his business ventures abroad. [103] I do not intend to review all the evidence I heard, or to resolve all of the evidentiary differences. I will only deal with the evidence I found to be significant and resolve any differences in that significant evidence. a. Background

[104] By the time Mr. Foote died in 2004, his estate was worth approximately one hundred and thirty million dollars (US). He controlled a charitable foundation worth approximately eighty million dollars (US), and had other assets worth close to ten million dollars (US). [105] Prior to his death he had already given forty million dollars to the Edmonton Community Foundation and the Lord Mayor of Melbournes Charitable Fund (a charitable foundation in

Page: 30 Melbourne, Australia similar to the Edmonton Community Foundation). Mr. Foote had also made many other significant charitable and philanthropic gifts. [106] The bulk of Mr. Footes assets were held through corporations in the British Virgin Islands, including his charitable foundation. He had some investments and investment properties on Norfolk Island, collectively worth something less than $10,000,000 (US) and he had retained a cabin on Pigeon Lake, Alberta that he had owned prior to his departure for Australia in 1967. The cabin was valued at less than $500,000 (Canadian). [107] Outside of the investments through the British Virgin Islands corporations, Mr. Footes most significant asset was an estate on Norfolk Island known as Foot Nort. He had bought property on Norfolk Island in the early 1970s, and had built a large and luxurious home on that property. [108] In 1984 Mr. Foote married his third wife, Anne. After he married Anne, he and Anne bought a condominium in Sydney, Australia, which they used as a personal residence when they were in Australia. The Sydney condominium appears to have passed to Anne on Mr. Footes death, independent of his wills, and therefore does not form part of his estate. [109] In 1999, Mr. Foote and Anne purchased a condominium in Victoria, B.C. Starting in 2001 (when the condominium was completed and finished to their specifications) they began to stay there for extended periods in the Victoria summer (Norfolk Islands winter). The Victoria condominium was owned through a corporation controlled by Mr. Foote, and it too passed to Anne on Mr. Footes death. b. The wills

[110] Mr. Foote made three wills in October, 2003. All were signed in Edmonton, Alberta. His long-time friend David Bentley, a prominent Edmonton Chartered Accountant, was an executor under each will. [111] The Canadian will disposed of Mr. Footes Canadian assets, principally the cabin at Pigeon Lake. The children of his marriage to his first wife, Lois, are the beneficiaries of that estate. [112] The British Virgin Islands will left bequests to each of Anne, her children and grandchildren, Mr. Footes six children, his grandchildren, nieces, nephews, grandnieces and grandnephews, cousins children, son Douglass ex-wife and David Bentley. Annuities were provided for Anne and Robert, along with trusts for the grandchildrens education. The residue of his worldwide estate was distributed equally between the Edmonton Community Foundation and the Lord Mayors Charitable Fund. [113] The Norfolk Island will made various bequests to Anne, his children and stepchildren, and Annes sister and brother-in-law, and directed that Foot Nort be appraised and sold, with the proceeds divided among Anne, his children and stepchildren, the Lord Mayors Charitable Fund,

Page: 31 and the Norfolk Island Administration. The gift to the Island Administration was to be used for capital projects on Norfolk Island. Anne was to be permitted to live at Foot Nort for two years following his death. If Foot Nort did not sell within two years from his death, it would form part of the residue of the Norfolk Island Estate and be divided among Anne and his children and stepchildren. Other property on Norfolk Island was to be sold, and the proceeds divided among Anne and his children and stepchildren. [114] Despite considerable efforts by the Executors, Foot Nort had not been sold at the time of trial. [115] The precise details of the wills are not relevant to the issue of domicile, other than to note that at the date of the signing of the Canadian and British Virgin Island wills on September 5, 2003 and the Norfolk Island will on September 6, 2003, Mr. Foote referred to himself as being of Foot Nort, on Norfolk Island. The above-referenced provisions in the various wills are referenced in this decision only for contextual purposes. c. Chronology

[116] As is obvious from the preceding review of the law of domicile, the life-history of the deceased is crucial in determining Mr. Footes domicile. What follows is a synthesis of Mr. Footes eventful life. i. Alberta, 1924-1967

[117] Eldon Foote was born in Hanna, Alberta on December 29, 1924. He was educated in Stettler, Alberta as a youth, and lived there until he moved to Edmonton to attend university. He took Arts and Law at the University of Alberta. He was an active and loyal member of the Delta Upsilon fraternity while at University, and maintained close connections with his fraternity for the rest of his life. He made friends at university who became lifelong friends. [118] Mr. Foote articled with the firm now known as Bryan & Company LLP, stayed as an associate and eventually became a partner. He practised civil litigation, was appointed Queens Counsel and practised law full-time until 1967. [119] In 1950, he married Lois (now Lois Verchomin). Together, they raised five children: Trudy Marie, Douglas Alexander, Dean Norman, Laurie Louise and Robert Patrick. ii. Australia and Europe, 1967-1970

[120] By 1967, Mr. Foote was restless in the practice of law, and his marriage was floundering because of an affair he had been having for some four years. He was presented with a business proposal by a long-standing friend and associate, Bill Robinson. Mr. Robinson had become involved with a Houston, Texas-based company that was involved in the manufacture, distribution, and sale of a cleaning product, Swipe. The product was being marketed in what is now described as a multi-level marketing operation but was then known as a pyramid scheme.

Page: 32 [121] The cleaning product itself was apparently an excellent product, with many household uses. [122] Mr. Robinson had the rights to market Swipe in Australia and parts of the Far East. He invited Mr. Foote to join him in Australia and help develop the sales organization and business there, recognizing that Mr. Foote was in some turmoil in his life in Edmonton. Mr. Foote was interested in the product, interested in the entrepreneurial activity, and also saw an opportunity to rebuild his marriage with Lois. [123] He arranged to take a year-long sabbatical from his law firm, and he, Lois, and the five children headed to Sydney, Australia. It is clear that Mr. Foote was well suited to this type of business, and very quickly the Swipe operation in Australia became highly successful. As well as going to school in Sydney, the children (in particular Douglas and Dean) helped put together marketing kits to be used in sales presentations. [124] At the end of the sabbatical, the business was doing very well, and Mr. Foote decided to continue with the business, rather than to return to Edmonton and resume the practice of law. [125] Arrangements were made for Lois and the children to return to Edmonton in the summer of 1968, which they did. The family returned to life and school in Edmonton, while Mr. Foote devoted his time to building the Swipe business in Australia and the Far East. [126] By the fall of 1969, the business was going so well that Mr. Foote and Mr. Robinson were invited by Swipe head office to enter into a joint venture to introduce Swipe to Europe. That venture involved Mr. Foote moving to Switzerland and concentrating his efforts on business in Switzerland, France and other European countries. [127] Lois agreed to meet Mr. Foote in Switzerland. Trudy took up residence at her sorority house, as she had just started university. The other children were placed in various boarding schools. Switzerland turned out to be an unfriendly jurisdiction for pyramid sales, and the European operations moved to Paris. Mr. Foote and Lois rented an apartment in Paris, and Douglas soon joined them there, having realized that time at a boarding school in Switzerland would not be particularly advantageous to him at his stage of education. [128] France turned out to be as unfriendly to pyramid schemes as was Switzerland, and Mr. Foote became embroiled in legal proceedings against himself and Swipe arising out of their operations there. The business was not going well in Europe. Ultimately, a summer 1970 meeting among Mr. Foote, Mr. Robinson and Swipe head office personnel was arranged for the Canary Islands. Mr. Foote used the business meeting as an opportunity to gather his family together, and all five of the children met their parents for a summer holiday. [129] Also present were Val Oliver, who was then managing the Japanese operations of the Swipe business, and Vals young daughter, Debbie. The business meetings resulted in the European joint venture being dissolved, Mr. Robinson taking over management of the Australian operations, and Mr. Foote becoming manager of the Japanese operations.

Page: 33 [130] The family holiday ended when Mr. Foote announced to Lois that he intended to end their marriage and pursue a relationship with Val. Lois and the children immediately returned to Edmonton; Mr. Foote left for Japan with Val and Debbie. iii. Norfolk Island (entrepreneur), 1970-1997

[131] By this time, Mr. Foote had been away from Edmonton for over three years. He had given up his partnership with his law firm sometime after the summer of 1968 when he had decided to pursue a business career with Swipe. He had taken steps to cease to be a resident of Canada so that he would not be subject to Canadian income tax. [132] It does not appear that he had established a new place of residency, as his life had been somewhat transient since leaving Edmonton and the practice of law. After the start-up period in Sydney, he had spent most of the time from the summer of 1968 to the summer of 1970 traveling building up his business in Australia and Japan and then in Europe in conjunction with Swipe head office efforts to establish the Swipe business there. [133] His trips back to Alberta, even when his family was here, were infrequent and brief. His business was thriving, and he was enjoying great financial success. [134] For income tax purposes, the company originally established by Mr. Foote and Bill Robinson for the Australian operations (Rofo) had been incorporated in Norfolk Island. Norfolk Island is a small, remote, tropical island some 1000 miles east of Sydney, Australia. Its population is less than 2000. Norfolk Island is a territory of Australia, but its residents are not taxed as Australians. Indeed, they and corporations there are taxed very little. At that time it was a tax haven, and remained a tax haven for the balance of Mr. Footes life. [135] Mr. Foote was interested in minimizing his tax obligations, and had been advised to incorporate in Norfolk Island for tax and business reasons. He had no previous connection with Norfolk Island. [136] Before they separated, Mr. Foote and Lois visited Norfolk Island with the Robinsons. Mr. Foote remained interested in the island, and following his separation from Lois, he began to pursue the acquisition of property on it. He eventually purchased a substantial property and constructed a sizeable home there, described to me as the largest home on Norfolk Island. [137] From 1970 to 1997, Mr. Footes business was centered in Japan, but Mr. Foote had no interest in establishing residency in Japan. Throughout the nearly 30 years of doing business in Japan, Mr. Foote was scrupulously careful to avoid becoming a resident of Japan for tax purposes. While his businesses there paid Japanese income tax, he regularly left Japan so that he could maintain visitor (and tax-exempt) status, even though the bulk of his time was spent in that country. Had he not done so, he would have been subject to high Japanese income taxes. [138] Mr. Foote wanted a place to go when he was not required to be in Japan, or could not be in Japan for taxation reasons. He also wanted a place where he could bring his family for

Page: 34 holidays. In the early 1970s, Norfolk Island satisfied these requirements for him. He described his home on Norfolk Island as a sort of paradise, where he could go to relax and smell the roses, escape from the rigors of his growing and demanding business empire. It was also a tax haven where he did not have to pay any personal income tax, and business taxes were minimal. [139] Mr. Foote and Val were married in Edinburgh in 1971. He adopted Vals youngest daughter Debbie soon after. Mr. Foote and Val applied for and obtained permanent residency status on Norfolk Island by way of an application form signed by them in May, 1977. Norfolk law was demanding as to obtaining permanent residency status, which included a requirement that the person seeking such status actually reside on Norfolk Island for more than half of the time for five years over a six year period. Their application stated that We have resided on Norfolk Island for 5 out of the last 7 years) and I (and the persons named in this application) intend to continue to reside ordinarily in Norfolk Island. [140] Mr. Foote wrote to the Administrator of Norfolk Island on December 13, 1977, making his case for permanent residency status. He, Val and Debbie were granted that status on December 19, 1977, so it appears that Mr. Footes advocacy was effective. [141] Over the 1970s, Mr. Foote continued to expand his business. After returning to Japan in 1970, he and Val spent some time living in Manila as they tried to expand the Swipe business into the Phillipines. However, they decided that the Philippines was not suitable to their type of business operation, and returned to Japan. Over the Christmas holidays in 1971, the Foote children visited Mr. Foote, Val and Debbie in Manila. [142] During the 1970s, the Foote children pursued various educational endeavours. Trudy completed university, became a stewardess for Wardair, and met and married a Tahitian restauranteur. She stayed in Tahiti for some time, before moving with her husband to Victoria to open a restaurant there. Douglas attended university in Edmonton, and then went to the University of Victoria for law school. After graduation, he articled with his fathers old firm. Law practice was not to his liking, and he opened a restaurant/night club in Edmonton which he ran for many years. Laurie went to private school in Victoria, and ultimately married a Norfolk Islander she had met on one of her visits to Foot Nort. She and her husband David (known as Hunky), remained on Norfolk Island for a number of years before moving to Victoria. Dean and Robert attended private school near Victoria, and then university in Edmonton. [143] While Dean and Robert were at private school near Victoria, Laurie was in private school in Victoria, and Douglas was in law school at the University of Victoria. Mr. Foote and Val enrolled Debbie and Margaret, another of Vals children from her previous marriage, in the private school in Victoria with Laurie. With five children in Victoria over much of this period, Mr. Foote and Val purchased a modest home there. It was mainly occupied by Douglas while he went to law school, but it was also used by the other children on weekends and holidays. Because many of their children were at school in Victoria, Mr. Foote and Val visited Victoria frequently during the latter part of the 1970s.

Page: 35 [144] The Victoria house was sold after Douglas graduated from law school and left Victoria, and the other children finished their private school educations there. While the date of that sale is not explicit from the evidence, the Victoria house appears to have been sold by the time of Mr. Footes divorce from Val in 1981 as it was not dealt with in the divorce settlement documentation. [145] Mr. Footes marriage to Val broke up in 1980. Mr. Foote was concerned about Vals influence on the business in Japan, as she had been an important part of building the business there. She enjoyed the personal loyalty of most of the businesss senior management, and when she was removed from business operations, a large number of senior managers left. Her influence in the business was such that Mr. Foote was compelled to obtain injunctive relief against her with respect to business activities in Japan. Highly contested divorce proceedings ensued, but the resulting settlement left Mr. Foote firmly in control of the business (now known as HomCare). [146] Val and Debbie eventually returned to Norfolk Island (but not to Foot Nort); Mr. Foote remained in Japan to engage in more active management of HomCare and to repair the damage to the business resulting from his marriage breakdown and Vals departure. [147] Mr. Foote was at this stage extremely worried about the survival of the business, but was at the same time personally drained by the breakup of the marriage and the business strains caused by Vals departure, along with most of the senior management. [148] Douglas had by this time established the Sidetrack Caf in Edmonton, but left his fledgling business to join his father in Japan. He worked hard in the HomCare business, taking over many responsibilities from his father. [149] Dean also went to Japan to help his father with the HomCare business, and assumed significant responsibilities for the business-related manufacturing operations in Hong Kong. [150] Douglas testified that for some of the period while he and Dean were working in the businesses in Japan and Hong Kong, Mr. Foote had returned to Edmonton to get away from the business and personal stresses, and had an apartment there for awhile. [151] It is unclear how long Mr. Foote remained in Edmonton, but he eventually returned to Japan. Douglas and Dean talked to their father about long-term involvement in the business, and the possibility of taking it over from him or acquiring an interest in it. Nothing came of those discussions. Dean and his wife returned to Edmonton after about a year; Douglas returned to Canada shortly after Dean left. [152] After returning to Japan from his rest and recuperation period in Edmonton, Mr. Foote again threw himself into the business and was successful in repairing any damage caused by the breakup with Val and her departure from HomCare.

Page: 36 [153] Mr. Foote met Anne in Australia in late 1982, and they were married in Hong Kong in 1984. From the time of their marriage, they lived mainly in rented accommodation in Tokyo and at Foot Nort on Norfolk Island. Until 1990, Mr. Foote continued to be very actively involved in the HomCare business in Japan, requiring him to spend much of his time in Tokyo. His immigration status had not changed, so that he was required to leave Japan on a regular basis to avoid being taxed as a resident of Japan. During this period, he was recognized in Norfolk Island as being a permanent resident there. [154] While he and Anne travelled extensively, including regular trips to Canada, they also spent time in Australia with Annes children and, acquired a condominium in Sydney. After his marriage to Anne, Mr. Foote pursued Norfolk Island permanent residency status for Anne, which was ultimately granted in 1996. [155] Annes application dated August 22, 1996 stated that I have resided on Norfolk Island with my husband Eldon D. Foote at our home "Foot Nort" continuously since 1994 and that I intend, if declared to be a resident, to continue to reside ordinarily in Norfolk Island. [156] As with his and Vals application for residency status nearly 20 years earlier, Mr. Foote wrote to the Administrator advocating for Annes status. His letter of August 22, 1996 was somewhat legalistic in style and content, and contained the statement It is only because of the exigencies of the business have continued to compel her husbands presence in Japan and because of her desire to be with and to support her husband that they have been unable to spend the most of their time on Norfolk Island where they can enjoy family, friends, their home, their pets, the familiar surroundings and the environment that have contributed to their desire that Norfolk Island be their home. [157] His submission continued: The sole purpose of the time spent in Japan by the Applicant and her husband is to develop or locate a successor to manage the business in Japan, or alternatively to find a buyer so that the Applicant and her husband can spend much more time in Norfolk Island. [158] By the late 1980s, Mr. Foote was tiring of the HomCare business, and explored succession options and possible sale of the business. Discussions with family members, including Douglas and Annes son Marcus, were unproductive, and Mr. Foote could not come to terms with potential buyers. He was successful in attracting an Edmontonian, Ross Brown, to come to Japan to manage HomCare in Japan. After a somewhat lengthy training period, Mr. Foote gained sufficient confidence in Mr. Brown and backed off day-to-day management. As a result, he was able to spend significantly less time in Japan. He and Anne travelled more, and they spent more time at Foot Nort than had previously been possible because of the huge business demands on Mr. Foote. [159] Unfortunately, Mr. Brown left HomCare in 1993, and Mr. Foote was again required to spend significant time in Japan managing the business. He was intent on divesting himself of the business, and after some further discussions with Douglas and Annes son Marcus about them

Page: 37 taking over the business, he ultimately sold HomCare to the Dutch conglomerate Sara Lee in 1997. [160] Sara Lee did not acquire the hard assets of the business, and Mr. Foote was left with property in Japan, and the property in Hong Kong which had been used for the manufacture of the HomCare line of products. Despite these investments, he spent very little time in Japan after the sale to Sara Lee. iv. Norfolk Island (philanthropist), 1997-2000

[161] Freed from active business, Mr. Foote pursued what he described as his third career philanthropy. He connected with the Edmonton Community Foundation and created a charitable fund with it. He donated to various charitable, educational and sporting causes, including Edmontons Citadel Theatre, Winspear Centre, Cross Cancer Clinic, University of Alberta and the Boy Scouts in Stettler. At Annes urging, he sought out a vehicle in Australia to engage in philanthropic activities there. He settled on the Lord Mayor of Melbournes Charitable Fund, which is a foundation similar to the Edmonton Community Foundation. He made a sizeable contribution to it, and then pursued various philanthropic endeavours centred around cancer research and Norfolk Island. [162] At this stage of his life, he spent time on Norfolk Island at Foot Nort, spent time in Australia in Sydney and Melbourne, travelled extensively, and spent an increasing amount of time in Canada. [163] Mr. Foote continued to visit Edmonton regularly, and attended fraternity functions, philanthropic events and visited his friends and children in Edmonton. For many years, he, Douglas, Dean and Robert enjoyed a two or three day hunting trip in Alberta in the fall. v. Norfolk Island vs. Canada, 2000-2003

[164] By 2000, Mr. Foote was expressing some restlessness, and was heard to describe Foot Nort as an albatross. He had a significant financial investment in the property, but it was increasingly expensive to maintain. He worried that it would be difficult to sell for a reasonable price. He was becoming impatient with Norfolk Island politics, and was frustrated by island attitudes towards issues such as alternative energy. He began plans to dispose of Foot Nort, although he never advertised it or listed it for sale. He considered having it valued professionally, but had difficulty finding someone he was comfortable with to value it. Foot Nort was not appraised during his lifetime. [165] At the same time Mr. Foote had begun developing a second home in Victoria (unrelated to the 1970s Victoria residence). He purchased a condominium property in 1999, but at that time it was still under construction. By 2001, the condominium was complete, and they spent time there in each of the summers of 2001, 2002 and 2003. Mr. Foote seemed happy in Victoria, visited family there and took up painting.

Page: 38 [166] Because of the small population on Norfolk Island, Mr. Foote realized that potential buyers for Foot Nort would likely have to come from other parts of the world. With his knowledge of Norfolk Island immigration laws, Mr. Foote realized that a sale of Foot Nort might be aided if a potential purchaser of it could also acquire a successful Norfolk Island business. He bought a local gym, with a view to developing it as a successful business that might assist with the sale of Foot Nort, as well as being a benefit to the Island and the Islanders. [167] Developing the gym business began to occupy more of Mr. Footes time, as he became involved in renovating the premises, buying new equipment, hiring a manager, dealing with the landlord and generally trying to build up the business. [168] He investigated the tax implications of becoming a Canadian resident, and discussed returning to live in Canada with various of his children. Anne had expressed reluctance to move to Canada largely because of the climate. In early 2003, Anne purchased a residential property on Norfolk Island as a precaution, in case a move to Canada did not work out for her. She wanted to ensure that she would be able to return to Norfolk Island, regardless of what happened in Canada or what happened to Foot Nort. vi. Illness and death, 2003-2004

[169] Unfortunately, Mr. Footes health began to fail. In 2003 he and Anne summered in Victoria, and they came to Edmonton in September, 2003. Mr. Foote, Douglas, Dean and Robert enjoyed their annual hunting trip. Anne returned to Norfolk Island, and Mr. Foote and David Bentley went on a Citadel Theatre cruise from New York to Montreal. However, on the return trip to Norfolk Island, Mr. Foote became ill and was treated for pneumonia in Hong Kong. [170] Back on Norfolk Island, Mr. Foote continued to be unwell. He was diagnosed towards the end of 2003 as still having pneumonia, and was advised not to travel. He was unable to join his family on a planned Christmas cruise to the Galapagos Islands. That trip proceeded, and Anne went with various family members. Mr. Foote remained at Foot Nort. [171] Eventually, he sought medical advice in Australia. The doctors on Norfolk Island had been unable to come up with a diagnosis of his problems, so he went to Sydney to meet with specialists. In April, 2004, he was diagnosed with cancer, and was advised to pursue active treatment. [172] He immediately contacted David Bentley in Edmonton, to see if Mr. Bentley could make arrangements for him to receive cancer treatment at the Cross Cancer Clinic in Edmonton. Mr. Bentley was able to make arrangements for Mr. Footes admission to the Cross Clinic and for consultations with specialists, and Mr. Foote and Anne travelled to Edmonton in late April, 2004. [173] During Mr. Footes time at the Cross Clinic, Mr. Bentley made arrangements for the Footes to rent an apartment in Edmonton so that they would have a place to live during Mr. Footes anticipated cancer treatment regime.

Page: 39 [174] Sadly, Mr. Footes health deteriorated very quickly, and he died in Edmonton on May 14, 2004. vii. Post-death developments, 2004-present

[175] Statements of Claim were filed on behalf of Anne Foote and on behalf of Trudy, Douglas, Debbie, Laurie and Dean on January 30, 2008, seeking a declaration that Mr. Foote died domiciled in Alberta, or alternatively British Columbia (by Anne Foote), and a declaration that Mr. Foote died domiciled in British Columbia, or alternatively Alberta (by the Foote children). The Executor, the Lord Mayors Charitable Fund and the Edmonton Community Foundation responded, seeking declarations that Mr. Foote died domiciled in Norfolk Island. 6. Issues

[176] As is evident from this timeline, there are several crucial transitions and periods of residence that would establish Mr. Footes domicile at the time of his death. I will now turn to these critical periods and the alternative domiciles of those points: 1. Did Mr. Foote abandon his domicile of origin after 1967 in favour of a domicile of choice in Norfolk Island? 2. If so, did Mr. Foote abandon his domicile of choice in Norfolk Island and establish a new domicile of choice in British Columbia by expressing an intention to various persons that he intended to return to Canada, buying a condominium in Victoria in 2001, and residing there for some periods of time in 2002 and 2003? 3. Or did Mr. Foote abandon his Norfolk Island domicile of choice by expressing an intention of ceasing to permanently reside there in favour of returning to Canada, and taking steps to implement that intention by buying a condominium in Victoria, preparing to sell Foot Nort and leaving Norfolk Island, either to spend time at his condominium in Victoria, or with family in Victoria and Alberta, or by returning to Edmonton for treatments and dying in Edmonton, thereby reviving Mr. Footes domicile of origin in Alberta? 4. Or did Mr. Foote abandon his Norfolk Island domicile of choice by returning to Edmonton for treatments and making a conscious decision to die in Alberta (or end his days in Alberta), thus reviving Mr. Footes domicile of origin in Alberta? 5. If Mr. Foote did not abandon his domicile of origin in Alberta in favour of a domicile of choice in Norfolk Island, did he abandon his domicile of origin in favour of a domicile of choice in British Columbia by buying a condominium in Victoria in 2001, residing there for some periods of time before his death, and expressing an intention to various persons that he intended to return to Canada?

Page: 40 7. Domiciles Argued by the Parties

[177] The parties have adduced evidence and advanced arguments supporting each of these possibilities. [178] Anne Foote argues that either (a) Mr. Foote never abandoned his domicile of origin in Alberta, or (b) if he did, he abandoned it in favour of a domicile of choice in British Columbia sometime in or after 2001. If Mr. Foote acquired a domicile of choice in Norfolk Island, he abandoned that domicile of choice in 2001 or later, and either acquired a new domicile of choice in British Columbia, reverted to his domicile of origin in Alberta, or reacquired his Alberta domicile by coming here to end his days. [179] The Foote children argue that Mr. Foote did not abandon his domicile of origin in Alberta until sometime in or after 2001, when he established a new domicile of choice in British Columbia. Alternatively, if he acquired a domicile of choice in Norfolk Island, he abandoned that domicile of choice in favour of a new domicile of choice in British Columbia, or his Alberta domicile of origin revived because of his abandonment of Norfolk Island. [180] The Estate argues that Mr. Foote abandoned his domicile of origin in Alberta and established a new domicile of choice in Norfolk Island in the 1970s, and that he never abandoned that domicile of choice. [181] The Lord Mayors Charitable Fund and the Edmonton Community Foundation take the same position as the Estate. 8. Possible Unargued Domiciles

[182] It is clear from the evidence that there are many possibilities scenarios that would determine Mr. Footes domicile at the time of his death. That said, there are a number of possible domiciles that were not argued by any party, and may be disposed of in short order. One can generalize these residences as involving living in a certain location for a particular purpose. [183] Mr. Foote had residences in a number of locations following his departure from Edmonton in 1967 and prior to his building and living in a home on Norfolk Island. He resided in Australia immediately after leaving Edmonton, then also stayed in various locations in Europe. In each of these instances Mr. Foote had moved to these locations for employment reasons, and not to make his home. As indicated by the Supreme Court of Canada in Trottier v. Rajotte, those kinds of relocations do not displace a previous domicile (here Alberta, the domicile of origin). [184] Mr. Foote also spent considerable time in Japan, both prior to and after his establishing Foot Nort. This time in Japan was very clearly in relation to a purpose, running his business, rather than to establish a new home. Mr. Foote took care to ensure he never became a resident of Japan for the purposes of taxation. Clearly, Mr. Foote never intended to become resident of Japan, nor did he take the kinds of steps that would create that domicile.

Page: 41 [185] In that period, during his marriage with Val, he also maintained a property on Hawaii. This was no more than a holiday home, and never intended as a place of indefinite residence. [186] Mr. Foote purchased and periodically resided in a home in Victoria during the 1970s. Mr. Foote also purchased and periodically resided in a condominium in Sydney, Australia during the 1980s. In both cases, these were homes that served as secondary residences, used when visiting children. The Victoria home was principally used by one of Mr. Footes children. I conclude that in both these situations, Mr. Foote had not intended to make his domicile in these locations, nor were his actions the kind that would indicate he had abandoned his previous domicile and established a new domicile. [187] In brief, Mr. Footes residences in these locations are irrelevant for the purposes of my analysis. 9. Did Mr. Foote abandon his domicile of origin after 1967 in favour of a domicile of choice in Norfolk Island? a. Significant evidence (1967-1984)

[188] As noted above, I only intend to deal with the evidence significant to each of the various possibilities. Here, the issue is whether Mr. Foote had intended to change his domicile from that of Alberta to Norfolk Island, and had carried out that intention such that he displaced his domicile of origin. i. Mr. Footes ongoing connections to Alberta and Canada

[189] I have received considerable evidence concerning Mr. Footes ongoing and life-long connections with Canada. Anne Foote argues that Mr. Foote had never abandoned his domicile of origin in Canada, and any post-1967 residences were not intended to be his home. [190] It is clear that Mr. Foote had a lifelong attachment to Alberta and to Canada. He was proud of being Canadian, and never gave up his Canadian citizenship or acquired citizenship in any other country. Friends from Japan testified that Mr. Foote expressed strong feelings for Canada and that from their association and discussions with him, they assumed that he would return to Canada once he retired from active business. He held Canada Day parties, and aspects of the design of Foot Nort (and some of its contents) reflected his Canadian background. [191] He retained the family cabin at Pigeon Lake, Alberta, although there was no evidence that he ever used it or was even at it after 1967. [192] He maintained a strong connection with his college fraternity, attending fraternity functions, keeping in contact with fraternity brothers, and donating generously to fraternity fundraising activities. His fraternity brother Allan Warrack was one of the last visitors to Foot Nort during Mr. Footes life. He testified as to Mr. Footes strong connection with the fraternity,

Page: 42 and his involvement in fundraising, not just his significant donations. Mr. Warrack visited Foot Nort in March, 2004. [193] Mr. Foote maintained close friendships in Edmonton, including that with his executor David Bentley, with former partners at his law firm, and others. [194] Although only two of his children, Dean and Robert, remained in Edmonton, Mr. Foote visited them regularly, and Douglas and Dean testified to the nearly annual hunting trips in Alberta that Mr. Foote enjoyed with Douglas, Dean and Robert. [195] Once Mr. Foote began to make significant charitable and philanthropic donations, the largest portion of these donations went to Alberta causes: $30,000,000 to the Edmonton Community Foundation, and significant donations to Edmontons Citadel Theatre, Lunch Box program, Winspear Centre, the University of Alberta for Foote Field and other programs, the Cross Cancer Centre, the Stettler Boy Scouts. [196] While he and Anne made significant donations to the Lord Mayors Charitable Fund, which resulted in the funding of various Norfolk Island initiatives, and for cancer research in Australia, the evidence before me demonstrated Mr. Foote clearly favoured Alberta for donations and benevolent activities. ii. Mr. Footes post-1967 intention to make a life outside Alberta

[197] That being said, there was much evidence before me that Mr. Foote intended to leave Alberta at least indefinitely, and that he faced some significant hurdles before being able to move back to Alberta on a permanent basis. [198] When he left Edmonton in 1967, the first year was an experiment: would the Swipe business be successful? Would he prefer business to the practice of law? And would his marriage be repaired by being absent from Edmonton and starting a new type of life in a new location? [199] Douglas testified that when Mr. Foote left Edmonton, he was embarrassed by his situation here, largely as a result of the marriage breakdown and the affair. [200] Once away, it soon became clear that Mr. Foote had no specific plan to return to Edmonton. The Swipe business took off, he was very good at business, and he enjoyed it. By the time his family moved back to Edmonton in 1968, he was travelling extensively in Australia, Asia and Europe and building a rapidly-expanding and very successful business. He had little time for family. [201] When he moved to Europe in the fall of 1969, he asked Lois to join him, but placed all of the five Foote children in boarding schools or other residences. His marriage to Lois fell apart in the summer of 1970, and it is obvious that this was traumatic to the whole family. Lois and the children all returned abruptly from the Canary Islands to their lives in Edmonton.

Page: 43 [202] There was no evidence that Mr. Foote returned to Alberta again until after he and Val were married in 1971. He and Val did come to Canada in the summer of 1971 after their marriage, but not to Alberta. Instead they went to a lake in Saskatchewan. Lois encouraged the children to visit their father and his new wife in Saskatchewan, and my impression from the evidence of the Foote children was that the childrens relationship at that time with their father was strained to some extent. [203] The children then visited Mr. Foote and Val for Christmas in 1971 in the Philippines, where he and Val were unsuccessfully attempting to establish Swipe. There was again no evidence that Mr. Foote had returned to Canada between his visit in the summer of 1971 and that Christmas. After the unsuccessful Filipino experiment Mr. Foote focussed his efforts on the Swipe business in Japan, and the manufacturing business of Swipe products in Hong Kong. iii. Foot Nort

[204] It is clear that Mr. Foote had become attracted to Norfolk Island shortly after leaving Edmonton and deciding to pursue the Swipe business rather than return to the practice of law. His first trip, with Lois and the Robinsons, had left him favourably impressed, and after he and Val got married, his plans to buy property and establish a residence had crystalized. He bought the property on which Fort Nort was eventually constructed in 1972 and 1973. [205] I heard evidence from Douglas and Dean as to their activities in the construction of Foot Nort. That would have been in 1973, when the Foote children went to Norfolk Island for the first time. Foot Nort was under construction, and the boys stayed in a completed room there while the rest of the family stayed in the Lockwood House. [206] Mr. Foote described his intentions with respect to Fort Nort as being a retreat from his business life in Japan, a paradise from a beauty and climate perspective, a place to bring his extended family together and a location that had favourable tax treatment. I heard much evidence as to Mr. Footes interest in minimizing income tax obligations. His Swipe business had been incorporated in Norfolk Island because of the tax haven status of that island. Residence there minimized Mr. Footes personal income taxes as well, which was important to him. [207] According to Douglass discovery evidence, which was acknowledged at trial: By 1972, Dad had a new wife and was on a new life course. He saw Norfolk Island as the perfect place to establish his home. Natural beauty, with pine trees and rock cliffs, subtropical climate, no crime, English-speaking, and Commonwealth legal system, and with no personal income tax, which he considered to be an extra bonus. By the time Dad settled on Norfolk Island he was happy to have left his old life behind. I believe that Dads tumultuous personal life in Edmonton from 1963 through 1967, and then his involvement in pyramid sales was a source of embarrassment to him, and for those reasons alone, he would not then have contemplated returning to Alberta to live. He preferred his new life and location.

Page: 44 [208] Mr. Foote had a very substantial investment in Foot Nort. It was described in the evidence as the most substantial residence on Norfolk Island, and it had been carefully designed and constructed to accord with Mr. Footes tastes. It was used as a residence, but also as a place where Mr. Foote could bring employees as a reward, so it served many purposes. [209] I conclude that Foot Nort, a sizable and significant residence, is a significant indication of Mr. Foote intending to establish a long-term residence at Norfolk Island. iv. Norfolk Island residency status

[210] Mr. Foote actively pursued residency status under Norfolk Island Law for himself, Val and Debbie. [211] It is significant to consider the wording of the application form completed by Mr. Foote on his, Vals and Debbies behalf on May 19, 1977: We have resided on Norfolk Island for 5 out of the last 7 years. I (and the persons named in this application) intend to continue to reside ordinarily in Norfolk Island. [212] This status was granted to Mr. Foote in 1977, but not without some advocacy on his behalf. On December 13, 1977, he wrote to the Administrator regarding his application for permanent residency (which had not yet been granted). He stated: Retirement was not my intention at the time we moved to Norfolk Island nor is it intended for some years. We were anxious to establish a residence that would be our home, that our children would regard as home, and from which we could continue to devote the necessary time and attention to our overseas business interests which are largely centred in Japan. We have not altered that decision. [213] He continued: It is our intention that Norfolk Island will continue to be our only and permanent home ...We chose to build a home and develop and improve the property in a manner that could only be regarded as consistent with an intention to reside on the Island ...The choice of a Crown Lease as the site for our home is hardly consistent with a temporary or speculative intention ... If it should transpire that our application for residency on Norfolk Island is not approved, then I fear we will find ourselves in a position where we have no residency anywhere in the world. [214] Obviously, these statements of intent are relevant and help indicate Mr. Footes state of mind. The permanent residency status was granted a few days later. This status is also an indication of Mr. Footes intent and actions to establish an indefinite residence on Norfolk Island. v. The 1970s Victoria residence

Page: 45 [215] That said, the contents of the letter to the Administrator are somewhat at odds with Vals testimony at trial. Mr. Foote and Val had purchased a house in Victoria in about 1975. At that stage, the Foote family had a significant connection to Victoria. Various of the Foote children were attending private school in or near Victoria. While Mr. Footes mother had retired to Victoria at some point, and was visited there by Mr. Foote from time to time, the real Victoria connection appears to have started in the mid-1970s as more of the family moved to Victoria. [216] Val had three other children from her first marriage, and two (Margaret and Debbie) were enrolled in a private girlsschool in Victoria along with Mr. Footes daughter Laurie. Dean and Robert were enrolled at a private boys school near Victoria, and Douglas was attending law school at the University of Victoria. Victoria became a convenient place to visit the majority of the children of the extended family, and a house was purchased. Douglas lived in the house during his law school days, and his brothers, sister and step-sisters visited him from time to time. Mr. Foote and Val came to Victoria as well, but it was not clear if they ever actually stayed in the residence. [217] Val testified that Mr. Foote was always wanting to return to Canada. Val and Mr. Foote holidayed there, and visited family and friends there. She testified as to her son having settled in Canada, although did not give details as to when that happened. She testified that she and Mr. Foote intended to retire to Victoria, and the house they bought there was a toe hold. [218] She said that they discussed where they wanted to live when they retired, and agreed that Victoria was where they would live permanently. Val stated that they had considered buying a larger house in a nicer area, but decided against it on the basis that that could wait until later. They never discussed retirement on Norfolk Island. She said that at that time (during their marriage) she did not think about retirement on Norfolk Island, as they had no connection to the Island, no friends there, and their family was all in Australia or Canada. She considered Norfolk Island to be a retreat or a holiday home. [219] This evidence is itself not entirely consistent with Vals actions. She returned to Norfolk Island very shortly after the divorce, 1980-1981, and has continuously maintained a Norfolk Island residence after their divorce. I conclude she had more of a connection to Norfolk Island than was expressed. [220] After Douglas finished law school and returned to Edmonton, the Victoria house was kept for a brief period but was then sold. I conclude the house itself was never intended to be a residence for Mr. Foote and Val, but was a convenient acquisition. [221] None of the parties assert that Mr. Foote acquired a British Columbia domicile in the mid- 1970s by acquiring the house in Victoria. On behalf of Mrs. Foote and the children, however, it is argued that the purchase of property in Victoria confirmed Mr. Footes intention to return to Canada at some time in the future. [222] I disagree. I conclude that if the 1970s Victoria residence was any indication of Mr. Footes long-term intention to retire with Val (or anyone else) to Victoria, that intention did not

Page: 46 survive their divorce. The 1970s Victoria residence and any stated intentions were therefore irrelevant during at least part of the time Mr. Foote was residing in Foot Nort. v. The 1970s Hawaii residence

[223] In the 1970s, Mr. Foote also acquired residential property in Hawaii. Val had, at the time of their marriage, a vacation home there, and following their marriage, they acquired another property which was renovated and used as a holiday place. However, during their marriage, it is clear that they spent most of their time in Japan or Norfolk Island. [224] Mr. Footes relationship with Val began to deteriorate by 1979. By 1980 they had separated, and they were divorced in 1981. It is clear that the breakup and divorce were very acrimonious. As a result of the marriage breakdown, Mr. Foote divested himself of any interest in Hawaii property, but he retained sole ownership of Foot Nort. This also supports my conclusion that Foot Nort was Mr. Footes principal residence throughout this period, rather than a holiday or vacation home. vi. 1980s Edmonton apartment

[225] Because of their loyalty to Val, most of the senior management left the business when it was clear that the marriage had broken down and that Mr. Foote would be taking over full control of Swipe in Japan. Mr. Foote was faced with the task of saving and rebuilding the business in the face of this crisis. Douglas testified that the breakup with Val took a significant emotional toll on Mr. Foote, and he called on Douglas (who had then just established a restaurant business in Edmonton, having found the practice of law not to his liking) for assistance. [226] Douglas immediately went to Japan to help his father recruit new managers. Dean was brought over to Hong Kong shortly after that to take over management of the manufacturing business there. Douglas testified that his father was not in good emotional shape at this time, and had actually returned to Edmonton to recuperate. Douglas testified that he arranged for an apartment for his father in Edmonton, as Mr. Foote intended to be in Edmonton for some time where he would be in familiar surroundings, with old friends and some family (although Robert may have been the only one of his children in Edmonton by that stage). [227] Within a year or so, with Douglass and Deans assistance, the business was saved, and appears to have been put back on track. There was no evidence as to precisely how long Mr. Foote was in Edmonton. This would have been some period in 1981 or 1982. He then returned to Japan and Norfolk Island. [228] I conclude this residence was also little more than a holiday residence, or alternatively a relocation to obtain a health benefit, here psychological. This was relocation for a purpose, rather than to make a home. The relative scales of these residences is significant: an apartment vs. an extensive estate. This residence provides little, if any, indication that Mr. Foote had an intention

Page: 47 to reside in Alberta at that point. I note Mr. Foote, upon recuperation, resumed using his Norfolk Island residence. vii. Japan

[229] It is clear that Mr. Foote never intended to establish any kind of residency status in Japan. He avoided ever becoming a resident in Japan, mainly for fear of being taxed as a Japanese resident. His Norfolk Island residency gave him significant tax advantages, and those were clearly important to him. I have concluded any time spent by Mr. Foote is utter irrelevant to his intended domicile, and his intermittent stays in Japan did not indicate his putting into effect any plan to make his home in a different location. His time in Japan was for a purpose - business and nothing else. viii. Summary - post-1967 to 1984

[230] To pause in the narrative here, it appeared to me that there was little connection between Mr. Foote and Alberta from his departure in 1967 until he returned following the breakup of his marriage with Val in the early 1980s. He came to Saskatchewan shortly after his marriage to Val. He came to Victoria, B.C. from time to time to visit his mother, and then more frequently in the mid-1970s while many of his children were going to school there. Val testified that a year didnt go by when they werent in Canada. Debbie recalls a trip through the Rockies when she was young. [231] He brought his children initially to the Philippines, and then to Norfolk Island for Christmas holidays. The family trips that I heard of were much later on in the narrative, including the B.C. ski trips at Christmas, as were the annual Alberta hunting trips with Douglas, Dean and Robert which appear to have been a regular event after the business in Japan was sold. [232] Mr. Foote does not appear to have retained any business interests in Alberta, and while he retained his lake cabin near Edmonton, there is no evidence that he ever visited it after 1967. Nor was I informed of any long-standing plans in regards to that cabin. [233] Following his return to Japan in 1982, Mr. Foote appears to have again divided his time between Japan and Norfolk Island. His businesses obviously took him to other places from time to time, including Australia and Hong Kong, but most of his time was spent in Japan or at Foot Nort. As I have noted above, that time in Japan is irrelevant. b. Analysis - had Mr. Foote chosen a domicile in Norfolk Island between 19671984? i. 1967-1980

[234] Had Mr. Foote chosen a domicile in Norfolk Island between 1967-1984? From the whole of the evidence before me, the answer to this question is clearly yes.

Page: 48 A. Transient period

[235] The period immediately preceding Mr. Footes move to Norfolk Island is clearly irrelevant to the question of domicile. During 1967-1968, Mr. Foote was investigating opportunities that had been made available to him. He kept all of his ties to Edmonton and retained his Canadian domicile. When the family returned to Edmonton in the summer of 1968, Mr. Footes familial ties remained in Edmonton even though he remained out of the country. When he had Lois join him in Switzerland in the fall of 1969, and put the children in various boarding schools, his intentions were still unclear. The family retained their home in Edmonton and put down no roots anywhere else. [236] This kind of transient existence is described in Waggoner v. Waggoner, a divorce case. There, Primrose J. stated at para 10: During the past 20 years the defendant has moved from one jurisdiction to another in his work and the mere fact of change or residence obviously does not alter his domicile. He is in the same situation as many executives of oil companies who came to Alberta within the past few years to manage or operate oil companies in different branches of the oil business. Many of them are in Alberta temporarily and in due course will return to the United States, but it seems to me the defendant is in a different category. Not only has he commenced business for himself as I have mentioned, but he also expressed the intention to his wife of establishing his permanent home in Alberta. [Emphasis added.] During this period of mobility and commercial activity Mr. Foote never established either the intent nor took the steps to create a new domicile of choice. [237] Two criteria are required for Mr. Foote to then abandon his domicile of origin. Trottier v. Rajotte, at p. 206 indicates these criteria: 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 ... "for the rest of his natural life," in the sense of making that place his principal residence indefinitely. [Emphasis added.] B. Acquisition of a new residence

[238] The first question is simple - had Mr. Foote acquired a residence in the new potential domicile? The evidence is that he had. He had constructed a large home, Foot Nort, and spent significant amounts of time at that location. When absent from that location he was most often in Japan, a location that I have concluded is irrelevant for the question of domicile. [239] The English cases of Udny v. Udny and Plummer v. IRC indicate the relevant residence is a persons chief residence. There is little question that Foot Nort, rather than any alternative, must be considered Mr. Footes chief residence at the relevant times.

Page: 49 [240] It is unfortunate that the arrival and departure records are incomplete for 1977, 1978 and 1979. Nevertheless, by 1978, Mr. Foote had obtained the desired permanent resident status and could spend more time away from Norfolk Island if necessary. That said, the evidence is unchallenged that, when not at work in Japan, Mr. Foote generally resided in Foot Nort. Mr. Foote had also met the Norfolk Island residency requirements, which provides further evidence that he did actually reside on the Island. I will discuss the role of citizenship and formal resident status separately further below, but as I have previously observed, obtaining permanent resident status can only reinforce that Mr. Foote had obtained a new residence on Norfolk Island. [241] If Mr. Foote had intended to make a new life for himself on Norfolk Island, then he succeeded. The next question then is whether he had intended that result. C. Intention to have a new domicile - Foot Nort

[242] What did Mr. Foote intend when he established and moved into Foot Nort on Norfolk Island. Was this a continuation of his transient business-focussed life, or did he intend on making that his home, indefinitely? [243] Henderson v. Muncey, [1943] 4 D.L.R. 758, 59 B.C.R. 312 (B.C.C.A.), provides some insight into what intention is required to establish a new domicile. The B.C. Court of Appeal upheld the trial decision which held that an Oregon divorce was valid because the Plaintiffs first husband had acquired a domicile of choice in Oregon at the time of institution of the divorce proceedings. [244] The issue was framed in para. 9: 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 residence in the State of Connecticut with a fixed, settled determination of making his permanent residence in that State. [Emphasis added.] [245] In Henderson v. Muncey, the Court was satisfied that the proper conclusion to be drawn from the evidence, given the first husbands conduct and acts before, during and after (the filing date), Weier had the intention of permanently settling in Oregon. (at para. 13.) [246] I consider Henderson and Muncey to accurately state the law: the pertinent question is not as much about the intention to leave or abandon the old domicile, but rather the intention with respect to the new place of residence. That is not to say that I should disregard Mr. Footes comments on other domiciles, but rather my focus should be on Mr. Footes intentions in 1971 and thereafter as to making Norfolk Island his permanent or indefinite residence. [247] That is essentially the rule provided by Udny v. Udny, also cited by Lord Macnaghten in Winans v. A.G. at p. 413:

Page: 50 The question in such a case is not whether there is evidence of an intention to retain the domicil of origin, but whether it is proved that there was an intention to acquire another domicil. [Emphasis added.] [248] Mr. Foote had resigned from his law firm and divorced his wife Lois. He had left Edmonton in the first place partly because of embarrassment in the Edmonton legal community because of the affair he had before 1967. [249] The only reasonable conclusion I can come to on this evidence is that Mr. Foote was, especially after his marriage to Lois failed, looking to start fresh. Douglas described his father in those days: By 1972, Dad had a new wife and was on a new life course. He saw Norfolk Island as the perfect place to establish his home. Natural beauty, with pine trees and rock cliffs, subtropical climate, no crime, English-speaking, and Commonwealth legal system, and with no personal income tax, which he considered to be an extra bonus. By the time Dad settled on Norfolk Island he was happy to have left his old life behind. I believe that Dads tumultuous personal life in Edmonton from 1963 through 1967, and then his involvement in pyramid sales was a source of embarrassment to him, and for those reasons alone, he would not then have contemplated returning to Alberta to live. He preferred his new life and location. [Emphasis added.] [250] His actions after April, 1972 are entirely consistent with an intention to reside on Norfolk Island. His representations to the Norfolk Island authorities were consistently that he intended to reside on Norfolk Island for the indeterminate future, and that he considered Norfolk Island his only residence. He spent a considerable amount of money building a very substantial home. He brought his mother and his children to his home on Norfolk Island. He voted in Norfolk Island elections. He established no other residences anywhere in the world. [251] Some relevant evidence comes from his own words. When Mr. Foote had the opportunity to retire when he sold the Swipe business to Sara Lee in 1997, he returned to Foot Nort. In a talk to the Rotary Club on Norfolk Island in 1998, Mr. Footes notes indicate that he told the audience: In order to put my talk into perspective let me go back to 1972 when I first made Norfolk Island my home. I chose Norfolk Island as the place to make my home because I felt it was a good place to start my quest to Smell the Flowers. People often ask me why did you choose Norfolk Island to make your home? I think the best answer + one that I think explains it best is this:

Page: 51 If I was Robinson Crusoe + I was going to be shipwrecked on a remote island Id choose Norfolk Island. [252] Mr. Footes representations to the Norfolk Island authorities - that he intended to reside on Norfolk Island for the foreseeable future - were entirely consistent with the objective events going on in his life, and are entirely complimentary to the sentiment he expressed at this Rotary Club speech. On December 13, 1977, Mr. Foote wrote to the administrator, referring to his June application for permanent residency, and stating: We moved to Norfolk Island in February 1972 for the express purpose of making the Island our home. I had formed the intention some two years previous when I entered into an agreement with Mr. Stephen Nobbs to acquire a 12 acre Crown Lease at Rocky Point. Retirement was not my intention at the time we moved to Norfolk Island nor is it intended for some years. We were anxious to establish a residence that would be our home, that our children would regard as home, and from which we could continue to devote the necessary time and attention to our overseas business interests which are largely centred in Japan. We have not altered that decision. [Emphasis added.] [253] He continued: ... it is our intention that Norfolk Island will continue to be our only and permanent home. Two of our children, Debbie (11) and Margaret (16) have attended school on the Island and are presently attending school together in Canada. They return home during school vacations. With the exception of the eldest child our other children are all enrolled in tertiary education overseas. My wifes father has resided with us for the past 3 years on the Island and my elderly mother visits and lives with us from time to time. All of our children come to the Island as often as circumstances permit and we are pleased that even though much of their lives has been spent in Australia or Canada they regard Norfolk Island as home. We chose to build and furnish a home and develop and improve the property in a manner that could only be regarded as consistent with an intention to reside on the Island. [Emphasis added.] [254] He concluded: If it should transpire that our application for residency on Norfolk Island is not approved, then I fear we will find ourselves in a position where we have no residency anywhere in the world. [Emphasis added.] [255] From the time of his marriage to Val, until the mid 1970s, Mr. Foote retained little connection with Canada. It is clear that by April, 1972, Mr. Foote had abandoned just about everything in Alberta except his cottage at Pigeon Lake (which he apparently never visited) and his Canadian citizenship. There is no indication from the evidence relevant to the period July 1967 to April 1971 that Mr. Foote intended to return to Alberta or Canada under any

Page: 52 circumstances. While Henderson v. Muncey, Trottier v. Rajotte, Udny v. Udny, and Winans v. A.G. indicates that intentions in regards to Canada are not to be the focus of my considerations, there is nevertheless clear and convincing evidence to establish the necessary intention to abandon one domicile (here, the domicile of origin) and prove intention to the acquisition of a domicile of choice, Norfolk Island. [256] These plans to obtain a residence and make a new life on Norfolk Island are also fully complimentary to Mr. Footes financial objectives. He had ceased to be a resident of Canada for tax purposes, and was careful to not establish residency in Japan for tax purposes. From a tax perspective, it was important to Mr. Foote which he manage his tax affairs effectively, and two strategies were to incorporate his holding companies in a tax haven and to reside in a tax haven. Norfolk Island satisfied those requirements as well. [257] His actions are entirely consistent with an intention to reside on Norfolk Island. Paraphrasing Douglas, Mr. Foote had started a new life, with a new career, a new wife, a new fortune and a new mansion in a tropical paradise that also happened to be a tax haven. He was not there for business reasons, or health reasons, or for any purpose that could be described as temporary. He was on Norfolk Island to make his home. There is nothing in the evidence to suggest that Mr. Foote had any plans to move from Norfolk Island at that time, or took steps to implement those plans. D. Indefinite residence

[258] A potential complication is this analysis whether Mr. Footes intention was not only to make his residence on Norfolk Island, but also make that his indefinite residence. This question is complicated by the inconsistent language used in case-law for that part of the test. Certain older English cases refer to a person residing in a location for the rest of his natural life, while other judges speak of indefinite residence. On other occasions the courts speak of permanent residences, or, as in Bell v. Kennedy, whether the person intended on ... establishing himself and his family there, and ending his days in that country? [259] Trottier v. Rajotte provides key guidance on this question. In that matter, the husband was born in Quebec. At age 29 he went to the United States in search of work. Later that year, his parents, brothers and sisters followed him there. His family moved back to Quebec shortly before his marriage to the respondent. The plaintiff was also born in Quebec and she too had gone to the United States for work, and stayed there until her marriage some six years later, other than for an eleven month period back in Quebec with her parents. She and her husband were married in Connecticut. Her family, who were also briefly in Connecticut, had moved back to Quebec. After two years of marriage, she and her husband returned to Quebec. [260] She asserted in the litigation that she and her husband intended to establish matrimonial domicile in Connecticut. The question then was, was that stay in Connecticut indefinite, and so might establish domicile? Duff C.J.C for a unanimous court stated the appropriate principles applicable to that case at p. 207:

Page: 53 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. [Emphasis added.] [261] The Supreme Court emphasized the indefinite residency requirement to establish a domicile of choice. The Supreme Court noted at p. 208, quoting from the headnote of Lauderdale Peerage (1885), 10 App. Cas. 692: ...a change in 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. [Emphasis added.] [262] Before dealing with the facts, Duff C.J.C. added at p. 209: ...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. [Emphasis added.] [263] In this case, the Supreme Court held that the intention to take up permanent residence somewhere in the United States (but without determining where) was insufficient to constitute such an animus manendi as to destroy the domicile of origin. The language in Trottier v.Rajotte, at p. 209, suggests that the test is not so much whether a person intends to live in a location for the remainder of their life, but rather that the period of residence has no predetermined endpoint, an indefinite period of residence. [264] In Re Annesley, Russell J. at p. 698 described the test as voluntarily fixing his chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. [Emphasis added.] Here again, it is the lack of an end point to residency which is key. [265] That also is the approach taken by Austin J. in Re Urquhart Estate, where at para. 62 he concluded a domicile of choice had been established by the deceased: He was living there in fact and, insofar as he had any intention, was to go on living there indefinitely. I need not find that he intended to live there permanently. [Emphasis added.]

Page: 54 [266] That is also the conclusion reached in Hyland v. Hyland by the Australian Supreme Court of New Wales. Asprey J.A. was critical of taking the interpretation of the statement in Re Gape; Verey v. Gape, [1952] Ch. 418, affirmed [1952] Ch. 743, wherein Evershed M.R. considered the issue of permanent residency (not specifically domicile) and held that it meant residing in England with the intention of continuing to reside there until you die. At p. 465-66 Asprey J.A. observes: ... it is not essential for the acquisition of a domicile of choice that a persons intention must amount to a specific determination to reside in the country of choice for the remainder of his life. Where in the field of private international law the word permanent appears I do not think that the learned judges who used it in that context intended it to mean irrevocable or everlasting or that anything more was meant to be conveyed by it than what Lord Westbury appears to have had in mind in Udny v. Udny when he spoke of a general and unlimited time period. [Emphasis added.] [267] In Osvath-Latkoczy v. Osvath-Latkoczy, the husband needed to establish that he had acquired a domicile of choice in Canada. The Supreme Court held that his statement that he would return to his native Hungary if the Russians left was so remote and uncertain that it should not prevent the Court from declaring that he had acquired a domicile of choice in Ontario (emphasis added.) (at p. 2). Judson J. for a unanimous court approved the principle stated in Lord v. Colvin, (1859), 4 Drew. 366 at 376: That place is properly the domicile of a person in which he has voluntarily fixed the habitation of himself and his family, not for a mere special and temporary purpose, but with a present intention of making it his permanent home, unless and until something (which is unexpected or the happening of which is uncertain) shall occur to induce him to adopt other permanent home. [Emphasis added.] [268] In Estate of Fuld (No. 3), at pp. 725-26, Scarman J. makes a similar distinction. A period of residence is not indefinite where there is a clearly foreseen and reasonably anticipated contingency that would end that residence. [269] The Australian case of Hyland v. Hyland provides further assistance in determining when a future plan is relevant or merely remote and uncertain. Asprey J.A. held at pages 464 465: In the context of the principles applicable to a domicile of choice I am of the opinion that the use of the word permanent means nothing more than Lord Westburys phrase general and indefinite which, as I understand it, produces the result that the persons intention is one which, when formed, is to remain as a resident of the country of choice for a period then regarded by him as unlimited in point of time and without having addressed himself to the question of giving up such residence and leaving the country of his choice upon the happening of some particular and definite event in the foreseeable future notwithstanding that he may

Page: 55 entertain ... a floating intention to return at some future period to his native country ... Firstly it seems to me to be quite unreal to ask the average person who has arrived to settle in a particular place to determine whether his intention is to reside there forever for his answer well might be that he proposes to remain so long as the political climate continues as it is or the economy remains stable or his own financial position or health permits him to do so - and there might be a dozen or more other remote contingencies which, if suggested to him, would place a qualification on the word permanent. [270] It seems to me that this distinction is appropriate and relevant - the future contingency is one that should be clear, and in mind. The test in Hyland v. Hyland might be restated as a person intends an indefinite residence unless that person commences a residency with clear and identified criteria on which that residency will end. More colloquially, that might be expressed as a person being here to stay, unless something happens. [271] Further, I believe the manner in which future contingencies have been described in Osvath-Latkoczy v. Osvath-Latkoczy, Estate of Fuld (No. 3) and Hyland v. Hyland are simply equivalent but set in reciprocal contexts. The existence of only remote and uncertain contingencies and the absence of clearly foreseen and reasonably anticipated contingencies or clear and identified criteria are essentially the same. [272] Combining the principles indicated by the Supreme Court of Canada in Trottier v. Rajotte, and the conclusion in Osvath-Latkoczy v. Osvath-Latkoczy, intention to establish an indefinite residence requires: 1. that the person: a. had not moved to the new residence for a specific purpose, such as for ones health, travel, or business; but had moved to the new residence for the purpose of making that location the persons principal place of residence; and

b.

2. 3.

that the period of residence has no predetermined end point; and there are no clear and identified criteria on which that residency will end.

[273] I therefore conclude that Mr. Foote intended an indefinite residence on Norfolk Island unless he had sufficient plans that were not so remote and uncertain as to affect that conclusion. Two such plans have been suggested by the parties - an ongoing plan to return to Canada, and more specific plans of a retirement to Victoria. E. Future plans

Page: 56 [274] Osvath-Latkoczy v. Osvath-Latkoczy and Hyland v. Hyland clearly provides the relevant test for whether a future contingency may negate the intention to obtain a domicile of choice. A contingency is irrelevant where that contingency is remote and uncertain. In contrast, a relevant future contingency is one where there are clear and identified criteria on which that residency will end. I. Ongoing association with Canada

[275] Mr. Footes life-long association with Canada has been advanced as indicating that he never had abandoned his domicile of origin. Case-law was cited by both parties in relation to that issue, in particular Winans v. A.G., and Re Corlet and Isle of Man Bank (No. 2). As noted, Osvath-Latkoczy v. Osvath-Latkoczy, Estate of Fuld (No. 3), and Hyland v. Hyland provide the relevant test. [276] First, after his relocation to Norfolk Island there is very little evidence of Mr. Foote retaining all that tangible a link to Canada. Viewed from the time frame of the early 1970s, it cannot be said that Mr. Foote did not intend to settle in Norfolk Island permanently. He applied for that status and vigorously pursued it. There is no evidence to suggest that he was being disingenuous or dishonest to the Norfolk Island authorities. The truth of his statements to them is corroborated by virtually all of his actions at that time, and the description of Mr. Footes new life as of 1972 provided by his son Douglas in these proceedings. [277] It is useful to contrast Mr. Footes situation with that of the deceased person in Winans v. A.G.. Winans was an American citizen who lived for a time in Russia, and had various residences in England. The chief question in this case was whether Mr. Winans had abandoned his American domicile of origin and acquired an English domicile of choice. Lord Macnaghten quoted Udny v. Udny, observed the crucial question is of intention to acquire another domicile (at p. 413), and stressed the heavy burden required to displace a domicile of choice (at p. 413). [278] For Mr. Winans, that determination had to be made on the basis of looking at his longcontinued residence in England, some oral declarations, and some words in some legal documents. His business had been principally in Russia; he initially wintered in Brighton, then started spending time in Germany as well. For 12 years, he divided his time between Germany, Brighton, Scotland, and London, and then spent all of his time in England for the last four years of his life. [279] A view of his life showed him to be anti-English and wholly American. He had provided assistance to the Russian government during the Crimean War, a conflict Russia had fought against an alliance of Turkey, France, and Britain. He was somewhat anti-social, and described himself as an American sojourning in London. He referred to Baltimore as home; expressed an intention to return to Baltimore when an invention he was working on had been perfected. The invention itself provides further indication of Mr. Winans attitude to England, as the invention was a kind of spindle-shaped ship that when produced by the U.S. would allow that country to seize world trade and in war defeat the Royal Navy (at p. 415-416).

Page: 57 [280] Mr. Winans had never purchased residential property in England; the home he lived in for many years was rented on a year-to-year basis. He took no interest in England, either socially or politically. [281] Lord Macnaghtan noted at page 416: Length of time is, of course, a very important element in questions of domicil. An unconscious change may come over a mans mind. If the man goes about and mixes in society that is not an improbable result. But in the case of a person like Mr. Winans, who kept himself to himself and had little or no intercourse with his fellow men, it seems to me that at the end of any space of time, however long, his mind would probably be in the state in which it was at the beginning. When he came to this country he was a sojourner and a stranger, and he was, I think, a sojourner and a stranger in it when he died. On the whole, I am unable to come to the conclusion that Mr. Winans ever formed a fixed and settled purpose of abandoning his American domicil and settling finally in England. I think that up to the very last he had an expectation or hope of returning to America and seeing his grand schemes inaugurated. [282] Domicile was found in favour of the United States, which deprived the Crown of a legacy duty of 10% on a 2000 annuity were he to have been found domiciled in England. Lord Lindsay dissented. [283] While there are similarities between Mr. Foote and Mr. Winans, it is clear from the evidence that Mr. Foote enjoyed his life on Norfolk Island for the most part, and at least until 2001. He was not a long duration stranger in a strange land. He socialized, voted in elections, took an interest in the residents by establishing an educational trust and worked for the improvement of the island through sustainable energy and establishment of a year-round harbour. By 1971, he acquired an intention to reside on Norfolk Island indefinitely, and his representations in all legal documentation thereafter, from his declarations and submissions to the Norfolk Island authorities, in his correspondence, on his business card, and in his final wills, all continued to consistently show his home as being on Norfolk Island. [284] He was no sojourner on Norfolk Island. Mr. Foote moved to Norfolk Island with the intention of residing there indefinitely. His intention was expressed by clear acts of moving to Norfolk Island and establishing there what he frequently described as his only home. He clearly abandoned his domicile of origin and established a domicile of choice. [285] Re Corlet and Isle of Man Bank (No. 2), [1938] 3 D.L.R. 800, [1938] 3 W.W.R. 20 (Alta. S.C.) turned on the question of onus. Shepherd J. held that those seeking to establish a change of domicile had not discharged that onus, and Mr. Corlet remained domiciled in the Isle of Man, his domicile of origin. He was born there in 1887, came to Alberta in 1909 and stayed employed with the same company in Calgary from 1913 until his death in 1935. The deceased described himself in a 1931 deed of settlement as being from the Isle of Man, presently residing

Page: 58 in Calgary. In his will executed shortly after the trust deed, he inserted temporarily before residing in Calgary. [286] The evidence showed an attachment towards his birthplace, and family members still there. His brother indicated that Mr. Corlet was looking forward to coming home permanently - that is to take up a permanent residence on the Isle of Man. [287] Despite his long residence in Calgary, Shepherd J. held at para. 6: On the whole I am unable to come to any other conclusion than that Corlet never formed a fixed and settled purpose of abandoning his domicile of origin and up to the very last he had expectations of returning to the Isle of Man from whence he came. [288] Corlet is probably the most helpful case to the Applicants as they argue that Mr. Foote never lost his domicile of origin. The details of Corlets life are not obvious in the judgment. There is evidence as to what he told people in 1925, what he said in letters after 1928 and what he said in the trust deed and will in 1931. There is nothing in evidence as to what he did in Calgary between 1909 and 1925, other than work. His widow (who along with Canadian tax collectors) was trying to establish an Alberta domicile, gave evidence that at one time her husband thought he would be wealthy and go home and purchase Milntown, a place in the Isle of Man, but in later years he never mentioned it. (at para. 4). [289] Shepherd J. commented about the widows testimony (at para. 4): This, of course, is not at all conclusive that he gave up the idea, particularly in view of the letters he wrote and the declaration he made, both in conversation with intimate friends and in written instruments, and I can well imagine why he might have deemed it advisable not to press the matter in his wifes presence until he felt he was ready to make the change. [290] The latter statement sounds very much like Mr. Footes conversation with Trudy to the effect that he was moving back to Canada whether Anne came or not. I note, however, that conversation did not occur until 2001, long after Mr. Foote may have acquired his domicile of choice in Norfolk Island. [291] Shepherd J.s decision flows chiefly from the dual factors of onus of proof and criteria for loss of a domicile of origin. Shephard J. correctly in my view, concluded the parties asserting that Mr. Corlet had lost his domicile of origin had the onus to prove that change of domicile. However, I note that Shephard J.s decision was reached in the context of the now obsolete rule that loss of a domicile of origin requires a higher standards of proof (at para. 5). In short, his analysis was conducted with a different legal test and standard of proof and is distinguishable on that basis.

Page: 59 [292] The decision turns on the trial judges understanding of the evidence before him. He found the widow and the Government had not met the onus of proving that he came to Alberta with the intention of making it his permanent home. [293] Applying the current law of domicile I might well have found differently on the facts as recited by the learned trial judge, as it appears that Mr. Corlets thoughts of returning home to the Isle of Man came about in 1925 and not before. In contrast, his stay in Alberta was lengthy, and he had a strong economic linkage to that jurisdiction; for example he died a member of the Alberta Bar, and had for many years been a lawyer practising in this province. [294] In light of the different legal standard of proof required in the present matter, I see Corlet as being of little value as an authority. Further, in one crucial sense the analysis in Corlet and the present matter are very different. The Estate and the other respondents have provided strong evidence that Mr. Foote did indeed intend to make Norfolk Island his permanent home when he settled there in 1971. Without question, Mr. Foote had retained certain affections for Canada, and might have imagined someday returning to this country, but those plans were, at most, remote and uncertain. [295] A not dissimilar evaluation was conducted in Bowie v. Liverpool Royal Infirmary, [1930] All E.R. Rep. 127 (H.L.). Bowie (or Ramsay)s domicile of origin was Scotland. He left a holograph will that was valid under Scots law, but invalid under English law. His holograph will left his estate to the Respondents and other non-relatives; his niece sought to be appointed adminstratrix of his estate in England, alleging that he was intestate. [296] Bowie had stayed in Scotland with his parents until their his fathers death, and when he was in his late 30s went with his mother, brother and sister to Liverpool where he resided in lodgings. He lived in Liverpool for over 20 years, returning to Scotland only once. He did not go to his mothers funeral in Glasgow; he refused to return to Scotland when his sister (who he was very close to) moved back. He apparently said that he never wished to set foot in Scotland again and arranged for his burial to be in Liverpool. He did, however, continue to refer to himself as a Glasgow man. [297] The House of Lords found (at p. 131) on that evidence that there was no sufficient evidence on the part of George Bowie to abandon his domicil of origin and to acquire a new domicil.. Lord Thankerton at p.131 approved the following statements of Lord Chelmsford in Udny v. Udny and of Lord Macnaghten in Winans v. A.-G.: Udny v. Udny: ...in a competition between a domicil of origin and an allegedly subsequentlyacquired domicil there may be circumstances to show that however long a residence may have continued no intention of acquiring a domicil may have existed at any one moment during the whole of the continuance of such residence. The question in such a case is not whether there is evidence of an intention to

Page: 60 retain the domicil of origin, but whether it is proved that there was an intention to acquire another domicil. Winans v. A.-G.: Such an intention, I think, is not to be inferred from an attitude of indifference or disinclination to move increasing with increasing years, least of all from the absence of any manifestation of intention one way or the other. [Emphasis added.] [298] Lord Thankerton concluded that burden of establishing a new domicile of choice had not been met. Lord Macmillan noted the dearth of evidence as to Mr. Bowies intentions, and stated at p. 132: Where matters are left so inconclusive I think that the description by the deceased of himself as a Glasgow man in his holograph will three months before his death may be accepted as the best evidence of his state of mind. But I prefer to rest my judgment on the failure, in my opinion, of the appellant to discharge the burden of proof incumbent upon her. [299] From the evidence, it appears that while Mr. Bowie (Ramsay) had no particular love of Scotland, and while he had no intention to return there, he had no particular affinity for England either. While he chose to stay in England, that was more a matter of inertia than something that could be described as a definite intention to permanently reside in England. If so, then intention is not a passive acceptance of a particular situation. [300] Mr. Foote was a very different man from Mr. Bowie. No-one could accuse Mr. Foote of indifference or inertia. As I have reviewed above, he clearly intended to reside on Norfolk Island for an extended period when he moved there in the early 1970s and applied for permanent resident status. In that sense I conclude Bowie v. Liverpool Royal Infirmary is not especially relevant to my consideration of whether Mr. Foote had intended to obtain an indefinite residence on Norfolk Island. Further, that facts of that case are of restricted relevance, as here again the decision was in the context of the obsolete rule that required an elevated standard of proof of loss of a domicile of origin. [301] Bald statements are also ineffective in dictating domicile, as is well illustrated by Re Annesley. This is an English case which involved an Englishwoman (domicile of origin in England) who married an English army officer (domicile of origin in England) in 1860. They moved to France in 1866 and resided there until 1884 when Mr. Annesley died. Mrs. Annesley was then free to acquire her own domicile of choice. She lived the rest of her life in France, having bought a chateau there. She expressed a dislike of the English, and stated that she only wished to live in France. She visited England rarely and during the last 32 years of her life, she visited England only four times, and then for brief visits. [302] Mrs. Annesley never took steps to formally acquire French domicile. She left two wills, one an earlier holograph will in French, and the other a formal English will in which she stated

Page: 61 that she never intended to abandon her English domicile of origin or acquire French domicile. Domicile was relevant as it determined if Mrs. Annesley could dispose of all of her estate (to one daughter) under the English will (if she was domiciled in England) or if she could only dispose of one third of her personal property by will (if she was domiciled in France) as French law required that two thirds of her personal property be divided between her children. [303] Not surprisingly on these facts, Mrs. Annesley was held to have acquired a French domicile of choice. Her statement of domicile in her English will, did not reflect the reality of her life. The statement in the will was given no weight. This is a useful illustration of how stated intent does not necessarily dictate domicile, rather the conduct of a person are determinative. As a consequence, the favoured daughter was unable to prevent her disinherited sister from acquiring one third of Mrs. Annesleys personal property because of the application of French law. [304] There are certainly similarities with this case, although Mr. Foote retained throughout his time away from Canada a great loyalty to Canada, he returned to Canada frequently and had expressed intentions of returning to live in Canada some day. That said, his actions to the mid 1970s were unequivocal on his intention to acquire a Norfolk Island domicile; any subsequent statements and actions did not negate those intentions and actions. Succinctly, at most Mr. Footes conduct had not advanced beyond the planning stages, and there is a wealth of evidence that indicates that any affection for Canada was no more than sentiment - Mr. Foote planned to live on Norfolk Island and that was his home. [305] On the basis of Mr. Footes extremely limited contact and association with Alberta in the 1970s, I conclude that Mr. Foote had sufficiently abandoned Alberta by the early 1970s and that any prior association with Alberta had no impact on his acquisition of a domicile of choice on Norfolk Island. That said, Osvath-Latkoczy v. Osvath-Latkoczy has made it clear that a domicile of origin (or of choice) can be lost without a specific finding that the person addressed the issue of existing domicile and intended to abandon it. A new domicile can be established so long as the intention and actions are present to prove that the person intended to reside indefinitely in some new place. [306] I conclude that while there is case-law that has seen courts conclude persons have retained a domicile of origin after long histories away from those domiciles, those are factspecific instances where a person had been clearly detached from their place of residence. There was no such detachment between Mr. Foote and Norfolk Island. Further, the facts of those cases should be viewed with caution, as many of these cases were decided in the context of a different standard of proof required where the allegation was that a person had replaced a domicile of origin with a domicile of choice. [307] I also note it would be wrong to superimpose on this time frame Mr. Footes state of mind and actions at later points when evaluating whether Mr. Foote had never intended to abandon his domicile of origin. Vals evidence that during their marriage (which ended in 1981) was that she believed that Mr. Foote would return to Canada when he retired. But, as we now see, those plans were indefinite, and speculative.

Page: 62 II. Retirement to Victoria (1970s)

[308] Vals evidence is that by the time the house in Victoria had been acquired, she and Mr. Foote had discussed and were planning to retire to Victoria. Those plans are somewhat at odds with the representations Mr. Foote was making to the Norfolk Island authorities concerning his, Vals and Debbies application for permanent residency status. It is not clear whether Val ever saw the letter to the Administrator, but she testified at trial that she would not disagree with what was in it. Nevertheless, she was clear that their future plans included a move to Victoria when they retired from the business. [309] There is no basis for me to reject Vals evidence. She was forthright and candid, and was not vigorously cross-examined on it. She has no interest in the outcome of the litigation, although her daughter Debbie does. Nevertheless, I accept that as early as 1975, Mr. Foote was contemplating retiring back to Canada. Buying a house in Victoria was somewhat confirmatory of that, although equally consistent with providing Douglas with a place to stay while he was going to law school and a place for the various children going to boarding school in Victoria to visit on the weekends. [310] I noted above that I felt Val was understating her attachment to Norfolk Island in the 1970's. That being said, I essentially accept Vals evidence, but consider it to irrelevant on three bases. [311] First, any intention to retire to Canada appears to have been formed at the time the children were in school in Victoria and when the house there was being acquired in about 1975. That intention was not formed when Val and Mr. Foote initially moved to Norfolk Island and began construction of Foot Nort in 1972 and 1973. While Mr. Foote remained a Canadian citizen, retirement plans were the last thing on his mind. The notion of retiring to Canada is a concept that arose years later, and largely in the context of his dislike of living in Japan and his continued loyalty to and connections with Canada. In that sense the Victoria retirement plans were not a long-standing intention that negated Mr. Footes intent to adopt a domicile of choice on Norfolk Island in the 1970s. [312] Secondly, the retirement plans were a future, uncertain event. The Victoria retirement plans were too tentative, uncertain and far into the future to constitute the necessary determination to abandon Norfolk Island and revert to his domicile of origin or acquire a new domicile of choice. In my view, retirement considerations in 1975 were remote, uncertain and would not constitute an impediment on acquiring Norfolk Island domicile, or provided the necessary intention to abandon Norfolk Island as a domicile of choice. That kind of prospective planning does not prevent acquisition of a domicile of choice: Osvath-Latkoczy v. OsvathLatkoczy. [313] Third, even if there was a genuine intention to establish a future Victoria retirement, that intention was not accompanied by any act of abandoning Norfolk Island, or establishing residency elsewhere. We do not have the benefit of the Norfolk entry and departure records for

Page: 63 1977 through 1979, but Mr. Foote did not establish residence anywhere else, or take any steps to dispose of anything he had acquired on Norfolk Island. [314] Not unlike Vals holiday property in Hawaii, the Victoria residence was never anything other than a holiday place. The house in Victoria was used by Mr. Footes children, and there is no evidence that Mr. Foote ever intended to use it as a personal residence. Further, it is clear the Victoria residence was not used as Mr. Footes residence, and was not intended to be a future residence. Any future residence would be larger, and in a nicer area. The evidence was only that it was a toe-hold in Victoria, and that toe-hold was soon abandoned. III. Conclusion as to future plans

[315] I therefore conclude that Mr. Footes adoption of a domicile of choice on Norfolk Island was not affected by any lingering imagined return to Canada, or more specifically to a retirement in Victoria, British Columbia. Mr. Foote may have, at times, engaged in such remote and uncertain prognostications, however they did not affect his choice of Norfolk Island as a domicile. The situation post-2000 is clearly distinct, and I will address that separately. F. Residency and citizenship

[316] The parties have commented at some length on Mr. Footes citizenship (Canadian, from birth to death), and his efforts to obtain residency on Norfolk Island. I have indicated above that I considered this information as probative though not determinative. What follows is my analysis of how weight should be accorded to either development. [317] The authorities make clear that domicile is not determined by citizenship. Nonetheless, citizenship may in certain instances provide clues as to the intentions of a person: for example, Winans v. A.G., at p. 415-416. [318] Formal residency in a location may also be relevant for providing indication of intent. In this sense, there is no question Mr. Foote had actively sought and obtained formal resident status. [319] By April, 1972, Mr. Foote had acquired the Foot Nort property and he, Val and Debbie had been granted an entry permit authorizing them to enter Norfolk Island and to remain there indefinitely. The application for the entry permit was submitted in August, 1971 and referred to an entry date of December 5, 1971. In the application, Mr. Foote stated that the purpose for the application was for taking up residence on Norfolk Island. [320] By June, 1977, Mr. Foote, Val and Debbie had applied for permanent residency status. Mr. Footes representations to the Norfolk Island authorities are important, and I have no reason to think that he was not being honest and candid with the government authorities at the time. He was undoubtedly very keen to obtain the necessary status, but there is no indication at that time that he had any intent of leaving Norfolk Island and establishing residence anywhere else.

Page: 64 [321] Mr. Foote and Val were shown on the Norfolk Island electoral roll as of June 5, 1974. [322] That said, residency and domicile are not necessarily equivalent. Hyland v. Hyland addressed the effect of residency, and its facts bears some similarities to the case at bar. Mr. Hyland was an Australian who left for Thailand in 1946 to set up business there. His family were prosperous Australians, who urged him to return to Australia and work in the family business. Mr. Hyland had no home in Australia; he lived in Bangkok and entered fully into Bangkoks social life. His business in Thailand was very successful. Although he later established and operated a business in Vietnam which required frequent and lengthy absences from Bangkok, he still regarded Bangkok as home. [323] That said, he had significant links to his domicile or origin, Australia. He had some assets in Australia, had a ski lodge there and for a time had an apartment there. He maintained ties with family in Australia. Further, Thai law did not allow him to own real property in Thailand, and despite living in Thailand, he had no legal right to live there indefinitely. [324] He described his residence as being in Bangkok, but in relation to tax matters, he replied to tax authorities in Australia that he intended to return to Australia but it could be in one to ten years. He re-wrote the letter indicating that he did not intend to return to Australia for the purpose of taking up permanent residence there, because he had been advised that the first answer might have created some risk that he might be found to be an Australian resident. The Court of Appeal ruled that Mr. Hyland had acquired a domicile of choice in Thailand, despite the fact that he had not acquired legal residency status there. Taylor A.C.A. dissented. [325] Asprey J.A. observed at p. 466: A man may still have ties with or visit the country of his birth consistently with the acquisition of domicile of choice in another country. Further, a person can acquire a domicile of choice in a country without naturalization and conversely a person does not necessarily acquire a domicile of choice where he has been granted naturalization ... [326] The result of the decision was to deny Mrs. Hyland matrimonial causes relief in Australia by reason of Mr. Hylands Thai domicile. [327] I am in agreement with Asprey J.A.s decision, especially as it relates to his description of the necessary intent to establish a domicile of choice. [328] I am also in agreement with Megarry J. when he noted that the absence of an animus revertendi was sufficient, and it was not necessary to establish an intention to not return. [329] Mr. Footes circumstances are very similar to Mr. Hylands. The issue there related to the loss of the domicile of origin, not the loss of a domicile of choice and acquisition of a new domicile of choice or reversion to the domicile of origin. There, the connections with Thailand and Vietnam were lengthy and close. But Mr. Hyland had no period where he had virtually

Page: 65 severed his ties to Australia, as Mr. Foote did in the early 1970s when he re-established himself on Norfolk Island. In Mr. Footes case, I think it is even clearer as to when he acquired a domicile of choice on Norfolk Island than it was with Mr. Hyland and Thailand. Mr. Hyland had family members actively trying to persuade him to return to Australia. He was unable to acquire residency status in Thailand, but his residence there was not unlawful. Contrast that with Mr. Footes vigorous pursuit of permanent residency status on Norfolk Island, and his displeasure at being removed from the voters list there. [330] Consequentially, nothing turns on Norfolk Island law regarding residency. Mr. Foote was always there lawfully. The parties agreed on the relevant Norfolk Island legislation and ordinances concerning immigration to and residency on Norfolk Island, and I have reviewed the legislation. What is relevant is the contents of the forms submitted by Mr. Foote, and his correspondence with the Administrator and other officials on Norfolk Island - and those are the materials that I have cited above. G. Conclusion

[331] When Mr. Foote announced in the summer of 1970 that he was separating from Lois and embarking on a relationship with Val, his ties to Edmonton and Canada weakened significantly. By the time Mr. Foote and Val arrived in Norfolk Island in December, 1971, Mr. Foote had been away from Edmonton for over four years. While he had been back briefly in the summer of 1968 when Lois and his children returned from Australia, and he and Val had gone to Saskatchewan in the summer of 1971 and visited with the Foote children there, there was no evidence of any other trips to Canada in that period. What is clear is that by 1971, his business was succeeding and he and Val were looking to establish a residence and life together. [332] That life was to be on Norfolk Island. Mr. Footes submissions to the Norfolk Island administration - and specifically their contents - favour my concluding that Mr. Foote had abandoned his Canadian domicile and acquired a domicile of choice on Norfolk Island by the time the entry permit was granted on April 26, 1972. By that time, the evidence shows unequivocally that he intended to reside on Norfolk Island indefinitely. [333] The reality in 1972 was that Mr. Foote was starting his new life, with his new wife in his new residence in a new country. This evidence is overwhelming that Mr. Footes domicile changed from Alberta to Norfolk Island by April 1972. Once his residency status was secured, he was confident enough to complete the purchase of the Foot Nort property and begin construction of his new home. Securing his permanent residency status in 1978 merely cemented the indefinite nature of his residency on Norfolk Island. [334] I do not find that Mr. Footes representations to the Administrator in 1977 as to his residency intentions on Norfolk Island were in any way disingenuous. They are entirely consistent with an intention to reside indefinitely on Norfolk Island. Abandoning a domicile of origin and acquiring a domicile of choice does not require a finding that someone has moved away from the domicile of origin with the intention of never returning. An intention to move away for an indefinite period, with no certain or definite plan to return is sufficient. As well, to

Page: 66 acquire a domicile of choice, it is not necessary to find that someone moved there with an intention of ending ones days there - essentially never moving away. The necessary intention is to live there indefinitely, with no certain or defined plan to leave and live somewhere else. [335] Mr. Foote voluntarily fixed his residence there; it became the residence of his new wife Val and his newly-adopted daughter Debbie. His Canadian children visited frequently; Douglas met his first wife there; Laurie met and married her husband there and lived there until 1999. There was no reason to be on Norfolk Island other than choice. One only has to look at Mr. Footes declarations to the Norfolk Island authorities when he was pursuing his, Vals and Debbies residency status in 1977. Those communications cannot be ignored or trivialized. He had the present intention of making Norfolk Island his permanent home, unless and until some future events (such as uncertain retirement plans or other circumstances) occurred. [336] Those other events did occur - but not until after 2000, by which time Mr. Foote had been domiciled on Norfolk Island for more than 20 years. I will turn to that period and the distinct legal issues relevant at that point later in this judgment. ii. 1980-1984

[337] To some extent this new life was disrupted when Mr. Footes marriage to Val broke down in 1980. The separation and resulting divorce were apparently bitter. Mr. Foote initially fought with Val over control of the Swipe empire in Japan. Once that battle was won by Mr. Foote, he had to immediately replace most of the senior management in Japan, who were loyal to Val and quit Swipe en masse when Mr. Foote solidified his control. [338] Douglass evidence (and I accept it) was that Mr. Foote was emotionally and physically exhausted by the marriage breakdown and battle over Swipe. Douglas left a new business venture to go to Japan to help with the recruitment of new senior managers, and to help manage Swipe. Dean came to Hong Kong to manage the manufacturing business there. At some stage in 1981, Mr. Foote returned to Edmonton for some time, to recuperate. [339] There was little detail of this period given in evidence, but it does demonstrate a revived connection to Edmonton that appears to have begun around this time, and increased over the ensuing years. [340] There is no indication, however, that Mr. Foote intended to move back to Edmonton or Canada permanently; the return at this time was merely for rest and recuperation. He fairly quickly returned to his business world, working in Japan and resuming residence on Norfolk Island. [341] In 1980, he spent only six days on Norfolk Island, but that was likely because of the marriage breakdown and demands of business in Japan. In each of 1981 and 1982, he spent 33 days on Norfolk Island, and by 1983 he was there for 82 days.

Page: 67 [342] In any case, I conclude that Mr. Footes intentions during that period were to continue to maintain his domicile in Norfolk Island. His stay in Edmonton was for a specific purpose, recuperation, rather than to make a home. There is no evidence to suggest his Edmonton apartment was his primary residence. He did not re-establish residence in Canada for tax purposes during this period. Certainly, his actions and time spent away from Norfolk Island were not sufficient to establish a new domicile, and do not imply that he had intended to change his domicile. c. Significant Evidence, 1984-2004

[343] In 1984, Mr. Foote and Anne married. They had met while Mr. Foote was visiting mutual friends in Australia. Anne, a New Zealander, had spent her adult life in Australia. When she and Mr. Foote were married, they divided their time between Japan and Norfolk Island, although Annes children Bridgette and Marcus remained in Australia. At some stage, Mr. Foote and Anne acquired and renovated a condominium in Sydney, Australia, where they stayed when visiting Annes children, holidaying, visiting friends, or conducting business in Australia. [344] Most of their time was spent in Japan, as the Swipe business was demanding and was in need of Mr. Footes close attention. Attempts to bring Douglas and Dean into the business had failed, and Douglas and Dean had returned to pursue interests in Canada prior to Mr. Footes marriage to Anne. [345] During the period from 1984 (the year he and Anne were married) to 1989 (when the new manager for the business in Japan had been trained), Mr. Foote spent 55 - 74 days a year on Norfolk Island. [346] As a result of his marriage to Anne, Mr. Foote and Anne pursued Norfolk Island residency status for her. Her application dated August 22, 1996 stated that she has: ... resided on Norfolk Island with my husband Eldon D. Foote at our home: Foot Nort continuously since 1984, (b) that I have not, during the period of 5 years immediately preceding the making of this application, been ordinarily resident elsewhere than in Norfolk Island; and (c) that I intend, if declared to be a resident, to continue to reside ordinarily in Norfolk Island. [347] Anne had some difficulty with her application, and Mr. Foote again used his advocacy skills to argue the case for residency status. His letter to the Minister for Immigration for Norfolk Island was more legalistic than his correspondence in 1977 when he was seeking similar status for himself, Val and Debbie. [348] His application on her behalf contained a number of statements which are material: The applicant formed the intention to reside on Norfolk Island and to be ordinarily resident on Norfolk Island at the time of her marriage in 1984 to Eldon Foote, who was then and had been a permanent resident of Norfolk Island since 1978. The

Page: 68 Applicant has persisted with that intention continuously since moving to the Island in 1984. At no time has she altered that intention nor has she formed the intention of being ordinarily resident anywhere else. It is only because of the exigencies of the business have continued to compel her husbands presence in Japan and because of her desire to be with and to support her husband that they have been unable to spend the most of their time on Norfolk Island where they can enjoy family, friends, their home, their pets, the familiar surroundings and the environment that have contributed to their desire that Norfolk Island be their home. [Emphasis added.] [349] In correspondence dated August 22, 1996, Mr. Foote stated (on Annes behalf): The sole purpose of the time spent in Japan by the Applicant and her husband is to develop or locate a successor to manage the business in Japan, or alternatively to find a buyer so that the Applicant and her husband can spend much more time in Norfolk Island. [Emphasis added.] [350] He and Anne did establish a comfortable residence in Tokyo, and had an active social life there. The friends who testified at the trial, who were also Canadians, described Mr. Footes love of Canada, and their beliefs, based on discussions with him during their social interactions with him, that he would eventually retire back to Canada. [351] The recruitment of Ross Brown from Edmonton to manage the business in Japan in 1989 freed Mr. Foote from having to spend most of his time in Japan, once he was satisfied that Swipe could be left in Mr. Browns hands. Mr. Brown had committed to four years with Swipe, so from mid-1990 until sometime in 1993, Mr. Foote was not required to be in Japan on a regular basis and spent 176 days on Norfolk Island in 1990, and 185 days in 1991. He and Anne travelled extensively, but spent a significant part of their time on Norfolk Island. From 1992 (when the new manager left) to 1996, (the last full year before he sold the Japanese business), he spent between 37 and 45 days on Norfolk Island. That was apparently because of the business demands in Japan and not because of increased time travelling or spent in Canada. [352] They had recruited Annes sister and brother-in-law to manage Foot Nort, and had a circle of friends there. As well, Laurie had met her future husband David (Hunky) while visiting her father at Foot Nort, and they remained on Norfolk Island. Hunky worked as a carpenter, and Laurie and Hunky also developed and operated a guest house. [353] Anne testified that Mr. Foote was always careful to keep his business affairs to himself on Norfolk Island. With a population of less than 2000, and already being the owner of the most substantial residence there, Mr. Foote did not want his personal business known by other Islanders. But they did appear to have a happy social life there, with family on the Island, friends, there, visits from family and friends, and entertaining Swipe employees. Annes sister and brother in law moved to Norfolk Island and her brother in law managed Foot Nort. Mr. Foote voted in Norfolk Island elections as he was entitled to do so as a permanent resident.

Page: 69 [354] There is no evidence that he voted in Canada after 1967. There is little evidence of any significant time spent in Canada between 1982 and 1997. [355] That said, by the early 1990s, Mr. Foote was returning to Alberta on a more regular basis, to see friends such as Mr. Bentley and others, to see his sons Dean and Robert in Edmonton, and to hunt with Douglas, Dean and Robert each fall in rural Alberta. Douglas had settled in Victoria, and Trudy and her husband Pierre had moved there from Tahiti, so there were visits to Victoria as well. Laurie and Hunky remained on Norfolk Island until approximately 1999, but then moved to Victoria. [356] One of the most useful documents in the litigation was a summary prepared by Annes counsel, taken from Norfolk Island immigration records. The summary describes the number of days spend by Mr. Foote on Norfolk Island, from 1971 until 2003 (based on entry and exit documents). [357] By this time, Mr. Foote was not enjoying the Swipe business in Japan. He was, of course, in his mid-60s. Although healthy and vigorous, he found the business becoming more and more of a millstone around his neck, preventing him from doing other things. What other things he wanted to pursue was not entirely clear, but they included philanthropy, something in which he and Anne had become increasingly interested. [358] Unfortunately, Mr. Browns tenure with Swipe ended in 1992 and Mr. Foote was required to return to Japan to take over management again. Attempts to sell the business had failed, and even though Mr. Foote was an extremely wealthy man by this stage, it was against his nature to abandon a significant asset. He and Anne reluctantly renewed the pattern of spending most of their time working in Japan, returning to Norfolk Island (and Australia and Canada) less frequently. [359] Attempts to involve Douglas and Annes son Marcus in the business did not succeed, but in 1997 the business was eventually sold to the Sara Lee conglomerate. While Sara Lee did not acquire the hard assets (leaving Mr. Foote with real estate in Japan and Hong Kong), he was again freed from the management of an active business and the need to spend most of his time in Japan. Once the sale closed, Mr. Foote only very rarely returned to Japan. [360] Now with a substantial fortune, and with no active business to manage, Mr. Foote was finally free to pursue other activities. [361] During this, his philanthropic period, it is significant that Mr. Footes time was largely spent on Norfolk Island: 1997 1998 1999 2000 2001 145 days 243 days 199 days 222 days 185 days

Page: 70 2002 2003 193 days 214 days

[362] His time off Norfolk Island included holidays elsewhere, time at his and Annes condominium in Sydney, Australia, and time visiting Mr. Footes children in Edmonton and Victoria. 2001, 2002 and 2003 included time spent in the newly-acquired condominium in Victoria. It is however clear that freed from business obligations and worries, Mr. Foote continued to spend a minimum of 50% of his time on Norfolk Island. The rest was spent in Australia, Canada, and on other travels. d. Analysis - had Mr. Foote chosen a domicile in Norfolk Island between 19842003?

[363] If I was incorrect in my conclusion that Mr. Foote had adopted a domicile of choice on Norfolk Island during the period prior to 1984, I have no doubt that Mr. Foote had, with his wife Anne, established a domicile of choice on Norfolk Island during the duration of their marriage. [364] The factors I have reviewed in relation to the period of 1967-1984 are generally relevant, and at least equally probative. Mr. Foote continued to use Foot Nort as his primary residence, and through much of this period had spent the majority of each year at that location. It was certainly his most elaborate and well-established residence. He returned to this residence from his travels and business, both as owner of HomCare and in his philanthropic career. He made this his home, with his wife, Anne. Anne also became a resident of Norfolk Island. Mr. Foote identified with Norfolk Island and the islanders, becoming integrated in the local social activities, via philanthropy, and his interest in developing Island infrastructure. [365] Mr. Foote intended to make Norfolk Island and Foot Nort his home for the indeterminate future, and had met that objective by creating and living in that residence. Future plans to return to Canada, if they had existed, were remote and uncertain. There is no evidence that Mr. Foote had established any ongoing and consistent retirement plans e. Conclusion - Adoption of Norfolk Island as a Domicile of Choice

[366] I conclude that Mr. Foote sometime during the period of 1967 to 2003 adopted Norfolk Island as his domicile of choice. His obtaining resident status in April 1972 is the point that I conclude on these facts that he obtained that domicile of choice, however if I am wrong on that point I conclude that further developments such as his obtaining permanent resident status in 1977, and his marriage and life with Anne post-1984 would only provide yet additional proof that Mr. Foote had established a domicile of choice on Norfolk Island. [367] I now turn to the remaining issue, whether Mr. Foote had abandoned his Norfolk Island domicile of choice late in his life. The parties have advanced several alternative possible alternative domiciles of choice.

Page: 71 10. Did Mr. Foote abandon his domicile of choice in Norfolk Island and establish a new domicile of choice in British Columbia? a. Significant evidence

[368] It is clear from the evidence that Mr. Foote in the last years of his life considered relocating to Canada, and had taken certain a number of steps towards that objective. i. Stated intentions

[369] Mr. Footes acquaintances and friends from his Japan days say they expected Mr. Foote to return to Canada when he retired. They were surprised to find that Mr. Foote was still residing at Foot Nort on Norfolk Island several years after his retirement from active business in Japan. They based their impressions on Mr. Footes expressed love of Alberta and Canada, his loyalty to Canada, his Canadian activities (celebrating Canada Day), his frequent trips to Canada, and the presence of his children from his first marriage in Canada. Val also testified she was also surprised that he had moved back to Norfolk Island instead of going to Canada when the business was sold in 1997. [370] From 1997 to 2000, the evidence did not disclose any particular discontent on Mr. Footes part, nor was there anything that indicated a fixed intention to move back to Canada. However, various witnesses testified that post-2000 Mr. Foote discussed selling Foot Nort and moving to Canada. [371] After 2000, Mr. Foote became increasingly unhappy with Norfolk Island life. Without his business interests, he focussed his off-Norfolk Island activities on family and philanthropy. On Norfolk Island, his attention was on improvements to Norfolk Island, such as alternative energy sources. [372] He was very keen on having Norfolk Island explore more sustainable sources for its energy usage. On November 2002, Mr. Foote wrote Rod Fraser, then president of the University of Alberta, in relation to the U of As Centre for Nanotechnology and Clean Energy. Referencing his own interest in alternate or renewable energy, he stated: Certainly this (role for solar/wind energy) includes remote areas. And it includes Norfolk Island where I make my home ... This is the focus of my interest and Im hopeful that I can make some impact in that area during my lifetime. [373] Shortly after that, in early 2003, Mr. Foote funded a $AU90,000 scholarship for a Ph.D student to investigate renewable energy options on Norfolk Island. [374] His interests in renewable energy were apparently not shared by government officials on Norfolk Island, and he became increasingly frustrated with the government and government attitudes. Even so, in April 2004 he pledged $2,600,000.00 towards construction for an allweather cargo unloading facility on Norfolk Island.

Page: 72 [375] His discussions with his children increasingly included talk of him returning to Canada. In the fall of 2001, Mr. Foote was hiking near Victoria with Trudy and Douglas. Trudy testified that Mr. Foote told them that he was intent on moving back to Canada and was going to do so whether Anne joined him or not. Anne had remained reluctant to move to Canada. In early 2002, Mr. Foote announced to Dean and his wife in Edmonton that he and Anne had decided to move to Canada. Anne was present and acknowledged that this was their intention. [376] It is clear from the evidence that by the time the condominium in Victoria B.C. was completed and ready for occupancy in 2001, Mr. Foote wanted to spend an increasing amount of time in Canada. His children were all there, as Laurie and Hunky had moved to Victoria in 1999. Three were in Victoria (Trudy, Douglas and Laurie) and two were in Edmonton (Dean and Robert). Only Debbie was out of Canada - she remained in Sydney. But Annes children Bridgette and Marcus were in Australia too. [377] Vals testimony is consistent with others in relation to Mr. Footes stated intent. Val herself had remained on Norfolk Island after the divorce in 1981. She said that because of the bitterness of the divorce, she and Mr. Foote communicated very little after that time. Some thawing in the relationship appears to have occurred as a result of Debbie having a son, Jack. When Debbie and Jack were on the Island, they visited Mr. Foote. Arrangements to see Debbie and Jack were occasionally made through Val, and she and Mr. Foote spoke on several occasions. [378] Val had a conversation with Mr. Foote about his plans in 2001 or 2002 when they had met because of Debbies husbands health problems (which had spurred Mr. Footes interest in cancer research). She asked him then about returning to Canada, and he told her that was still his plan, and it was just a matter of putting it in place. Other conversations after that confirmed his intention to return to Canada, probably Victoria, but there were complications and he was working through them now. [379] The last conversation occurred after Mr. Footes health began to deteriorate in late 2003 or early 2004 while Anne was away on the family trip to the Galapagos Islands. Mr. Foote went to Vals house to pick up their grandson Jack, and at that stage told Val that he was definitely planning to go to Canada and was only waiting for Anne to get back. [380] In the affidavit of applicant for Administration with Will Annexed for Mr. Footes Norfolk Island will, Mr. Brown swore on October 14, 2005: 14. I believe that the deceased considered that his domicile was in Norfolk Island. The reason for my belief is that I knew the deceased for over twenty five years prior to his death, and I am aware from personal knowledge that he regarded Norfolk Island as his home at the time of his death. [381] Mr. Brown was examined and cross-examined on his opinion that Mr. Foote had acquired Norfolk Island domicile and was so domiciled at the date of his death. Mr. Brown was a longtime friend of Mr. Footes and did some legal work for Mr. Foote on Norfolk Island. I would, however, not describe Mr. Brown as a confidant of Mr. Footes. Mr. Browns observations about

Page: 73 Mr. Foote and his conclusions are interesting, but really of no probative value on the issue. His affidavit was sworn in August, 2005, but the relevance of domicile is not apparent in obtaining a grant of probate for property in the jurisdiction. Mr. Brown was not qualified as an expert, and his opinion is essentially on the ultimate issue. While it was not objected to, I give it no weight in my conclusions. His evidence was nevertheless helpful as to Mr. Footes activities on Norfolk Island and his attitudes towards Norfolk Island. ii. Sale of Foot Nort

[382] Despite these declarations, no actual move occurred. Mr. Foote was intent on selling Foot Nort. He found Foot Nort increasingly expensive to operate and maintain, but despite his great wealth, he was not inclined to abandon Foot Nort or dispose of it for anything less than his views as to its value. [383] He had his own ideas as to its value, and took steps to identify a suitable valuator in 2002. He made contact with a trusted local realtor and sought some advice on valuation, but no appraiser was ever engaged. He considered approaches to marketing Foot Nort, and considered possible international realtors, but no realtor was ever engaged; Foot Nort was never listed. He realized that there was likely no one on Norfolk Island with the resources (or interest) to acquire Foot Nort, and realized that if it were to be sold for a significant price, it would likely be sold to an outsider. He had considered Foot Nort suitable as a wealthy persons getaway, or as a corporate resort or retreat. He considered contacting Sir Richard Branson about possible sale, and eventually did, shortly before departing Norfolk Island for what proved to be his last trip to Edmonton. [384] Because of Norfolk Islands restrictive attitudes towards the acquisition of Crown leasehold lands (how Foot Nort was then held), Mr. Foote thought that a potential purchase might be facilitated by his ability to sell a viable business to an outsider, along with Foot Nort. [385] That led to his acquisition of the gym and the resulting business activities. Despite the relatively modest sums involved, he became increasingly frustrated with the landlord and the state of repair of the building, and towards the end of 2003 became embroiled in a dispute over termination of the lease by the landlord. This issue occupied quite a bit of his time during the early part of 2004. [386] As part of his plans to make Foot Nort more marketable, Mr. Foote continued with his efforts to have his leasehold title converted to freehold, although that was a discretionary matter for the local government on Norfolk Island. [387] I conclude that Mr. Foote had decided to sell Foot Nort, and had begun a process to assist in both making that property more sellable, and to determine what the value of the estate would be. This fact is evidence of his intent to end his domicile on Norfolk Island. iii. The Victoria condominium

Page: 74 [388] In 1999 Mr. Foote purchased a condominium in Victoria, British Columbia, although it was still under construction at the time. By 2001 the condominium was complete, and that Mr. and Mrs. Foote spent a month to six weeks there in each of 2001, 2002 and 2003. [389] These visits were during the Canadian summer months, which were the winter periods on Norfolk Island. [390] It is clear that Mr. and Mrs. Foote anticipated the Victoria condominium would be their main residence when they moved to Canada. iv. Tax and immigration considerations

[391] Unsurprising, given his historical concern on financial matters and, in particular, tax minimization, Mr. Foote sought Mr. Bentleys advice regarding the Canadian tax implications to a resident of Norfolk Island on investment income earned on certain types of Canadian investments. The advice was based on the assumption that Mr. Foote had been a resident of Norfolk Island since 1971 and was considering opening an investment account with a Canadian brokerage house. [392] Consistent with what Mr. Foote was telling his children about a move back to Canada, Mr. Foote had Mr. Bentley investigate the tax consequences of a change of residency from Norfolk Island to Canada. Mr. Bentleys memo to his tax advisor is dated July 1, 2002, and a draft report was prepared by Deloitte & Touche dated October 8, 2002. The essence of the advice was that Mr. Foote could re-establish residency in Canada, and that any income earned by him or attributed to him would be largely if not wholly offset by anticipated charitable bequests. Mrs. Footes tax situation could be mitigated by an immigration tax plan. No apparently insurmountable problems to residency in Canada were identified. [393] Around this same time, Mr. Foote was exploring the possibility of Mrs. Footes daughter Bridgette emigrating to Canada, and advice was sought from McCuaig Desrochers in September 2002 as to the likelihood of Bridgette obtaining immigration status. Karen Swartzenbergers advice was based partly on the assumption that one of Bridgettes parents would be a resident of Canada. Despite the favourable advice, nothing further appears to have taken place with regard to possible immigration by Bridgette. [394] I conclude that these steps do demonstrate Mr. Footes intention had changed from continuing to reside on Norfolk Island, and that his intended destination was Canada. v. Philanthropic activities

[395] I have previously outlined Mr. Footes philanthropic activities, and while I note many of these activities were associated with Alberta, that alone can no more affect Mr. Footes domicile any more than would travel and residence in a location for a business purpose. Further, Mr. Footes philanthropic activities were distributed over three locations: Alberta, Australia, and Norfolk Island.

Page: 75 [396] That said, the major focus of his philanthropic interests was Alberta. That is not to ignore his concerns for Norfolk Island such as the scholarship program, alternative energy initiatives and latterly a breakwater; but the majority of his inter vivos financial commitments were to the Edmonton Community Foundation, the University of Alberta, the Cross Cancer Institute, the Citadel Theatre and the Winspear Theatre. [397] While this pattern of donation is in no way determinative of Mr. Footes domicile or his intentions, it does nevertheless reveal a link to Alberta (and Canada) that was not as apparent in the previous decades. vi. Travel location and duration

[398] From the correspondence in evidence, it appears that Mr. and Mrs. Foote spent from July 2 to October 10, 2001 away from Norfolk Island. They spent approximately 2 weeks in Edmonton in August, and another 3 weeks in Edmonton from late September through October 10. Much of the other time was spent at their newly-completed condominium in Victoria, B.C. [399] They were away from Norfolk Island from June 28 to October 23, 2002, largely in Canada. Some of the time in Canada was spent at the Victoria, B.C. condominium. [400] In 2003, the Footes were away from Norfolk Island for an extended period from August 9. They appear to have spent some time in Victoria. Mr. Foote and Mr. Bentley went on a Citadel Theatre tour in late October, though Anne Foote was unable to go on that trip because of other commitments. Before returning to Norfolk Island, in the early part of November, Mr. Foote travelled to Hong Kong. [401] I note that these periods away from Norfolk Island do not comprise the majority of 20002004, and while the Footes clearly spent time in Canada, their stays appear to be visits rather than a lasting relocation. vii. Annes intentions

[402] As I have described, Mr. Foote and Anne had a strong and happy marriage and they generally accompanied one another when on Norfolk Island and abroad. As a consequence, Annes response to Mr. Footes stated intentions is relevant. [403] It is clear from the evidence that whatever Mr. Footes intentions or hopes were with respect to returning to Canada, or spending more time in Canada, they were tied to Anne. Apart from Norfolk Island, Annes connections (her past and her children) were more with Australia than anywhere else. She was not particularly keen on the climate she had encountered in Canada, although she was somewhat content with Victoria. She enjoyed their life on Norfolk Island, and does not appear to have been interested in moving to Australia. She appears to have been willing to travel frequently to Canada and also appears to enjoy a good relationship with Mr. Footes children. She was, however, reluctant to actually move to Canada.

Page: 76 [404] In 2003, Anne became sufficiently concerned that Mr. Foote would insist on a move to Canada that she purchased her own property on Norfolk Island. This property was a hedge against her finding life in Canada too difficult, so that she would have a place on Norfolk Island to which she might return. The acquisition was described to Mr. Foote as an investment, so it appears that he was not aware that the property was Annes backstop against a sale of Foot Nort and her finding life in Canada unhappy. Her purchase was some time after the conversation related by Trudy that Mr. Foote was going to move to Canada whether or not Anne came with him. [405] There is no indication, however, that Anne was not willing to go to Canada with Mr. Foote by late 2001 or early 2002 and at least try out life there. However, she was clearly not prepared to abandon Norfolk Island, and wanted to maintain a place to live there if things didnt work out for her in Canada. I conclude that Anne was therefore not an obstacle to Mr. Footes intended change of residence, and infer from her purchase of a Norfolk Island property that she believed that Mr. Footes plans were sincere, and that he intended in the very near future to leave Norfolk Island and live elsewhere. vii. 2004 communications

[406] A series of communications between Mr. Foote and Mr. Bentley in 2004 is very helpful in ascertaining Mr. Footes then-current status and his future plans. [407] On March 20, Mr. Foote wrote to Mr. Bentley expressing concerns about the favourable tax climate in Norfolk Island changing over the next few years. Mr. Bentley responded on March 22, stating: Ill be interested in further developments! Have you heard anything further on the land ownership changes? I hope your health is returning to normal. I dont suppose you have made travel plans for later this year as yet. [408] Mr. Foote responded on March 22. He said: Im convinced the Commonwealths agenda is to watch N.I. go down the tube financially... Message - sad future for N.I. I feel David that I should make plans to depart N.I. + make our home elsewhere. Canada is the obvious place. I feel I should immediately study the tax ramifications with a view to minimize incidence of tax. While there is no panic I would like to put that top of the list for our next visit...Living on an island where the competing authorities are bereft of wisdom, foresight or ability is more than I can take. A sale of Foot Nort may not prove that fortuitous. Theyre doing everything possible to adversely affect land values. But thats another matter...Travel plans Canada July - Oct unless lease termination legal battle. [Emphasis added.] [409] Mr. Bentleys response on March 29 stated:

Page: 77 Re tax situation - We have already done some work on tax aspects of your moving to Canada so we have a base to work from whenever we get together...Good to hear you are going to spend time in Canada - perhaps a change of scenery will be beneficial for you. We are presently trying to put together a trip...August 16-31 so I may be away from Edmonton that period. [410] Mr. Footes response of April 1 stated: No doubt everything can hold til we get together. But I know it is not good for me in the long term. Too much stress - property - staff - medical - lack of secretarial help - intellectual atrophy - and the owner of the gym premises has served a termination notice of the lease effective July 31st. [Emphasis added.] [411] Douglas emailed Anne on March 9, saying: Im finding Norfolk often entering my thought and wondering how are you and Dad - how is his health and how are you doing? Anne responded by email dated March 10: He is also involved a lot with Tintoela (Laurie and Hunkys property on Norfolk Island) as Laurie is asking him for help...it seems that it is all a combination of things and then of course there is the gym. He is driving himself on this...Not much else I can tell you. The other things are as usual, piles of files on the floor, papers on the table, t.v. going all the time. US electoral guff on. As I said same old same old. [412] These communications are useful in three senses: they emphasize that Mr. Foote was clearly planning to end his residence on Norfolk Island, that Mr. Foote anticipated relocating to Canada, and that while planning for the relocation was underway, that planning remained at an early stage. No time-line for his migration had been established as there were serious obstacles he first wanted to address, specifically Foot Nort and the gym situation. ix. Conclusion

[413] I accept that by late 2001 or early 2002, Mr. Foote had decided to re-establish residency in Canada. Because he had acquired a condominium in Victoria by then, and Anne had expressed a willingness to try life in Victoria, any change in residency was going to be from Norfolk Island to Victoria. Edmonton was not in the picture, because of Annes concerns for the climate there. b. Analysis - had Mr. Foote in 2001-2004 abandoned his Norfolk Island domicile of choice and adopted a new domicile in Victoria? i. Relevant legal test

Page: 78 [414] The issue here is whether the events of 2001-2004 resulted in a change of domicile, specifically replacement of one domicile of choice for a second domicile of choice. I have previously indicated the legal test, from Trottier v. Rajotte, that applies in this situation: 1. did Mr. Foote intend to relocate to a new residence and remain in that new residence indefinitely, and did Mr. Foote change his principal residence to the new domicile?

2.

[415] Again, these are the two well established requirements, intention and adoption of the new residence. I will separately assess Mr. Footes intention, and Mr. Foote actions that may have resulted in his taking up a new residence. That said, I observe that some of the facts are relevant to both questions. For example, Mr. Foote taking steps to dispose of Foot Nort is not only an indication that he no longer wished to live on Norfolk Island and instead relocate to another place, but that sale would also be a part of the process of Mr. Foote changing from one residence to another, and particularly relevant to what residence was Mr. Footes principal residence. ii. Intention to obtain a new domicile

[416] As I have reviewed above, intention is a question of whether a person intends to move to a new domicile, and remain indefinitely in that new domicile. There is considerable evidence that Mr. Foote had decide post-2000 that he would leave Norfolk Island and make his home somewhere else. He had no intent to take up residence in Alberta; if that was his ultimate hope, it was a speculative one based on what Anne might be persuaded to do at some stage in the future. There was clearly no immediate plan to return to Edmonton. All evidence points to Victoria as being his new intended domicile. [417] As I have discussed above, the intention of a person to abandon the previous domicile is not determinative: Henderson and Muncey; Udny v. Udny; Winans v. A.G. That said, it clearly makes sense that an obvious intention to leave one domicile reinforces the likelihood that a person intends to adopt a new domicile. A. 1997-2001

[418] The testimony of Val and Mr. Footes friends from Japan indicate that they had expected he would immediately relocate to Canada. Obviously, that did not occur. Instead, his intention to leave Norfolk Island built more gradually. In the first few years immediately following sale of HomCare, Mr. Footes attachment to Canada did change. Mr. Footes interest in Alberta had increased greatly over this period. He was returning frequently; he had begun going on annual fall hunting trips in Alberta with his sons; he had established a relationship with the Edmonton Community Foundation; and he had begun to donate significant amounts of money to Alberta causes. But he was also exploring the establishment of a relationship with a charity in Australia, and he appeared to be enjoying smelling the roses on Norfolk Island. [419] He had also purchased the Victoria condominium, but had not yet lived here.

Page: 79 [420] I conclude during this period his intentions had not yet developed to the point of crystalizing an intent to relocate to Victoria. B. 2001-2004

[421] The evidence makes clear that in the following years Mr. Footes dissatisfaction with Norfolk Island had increased. I accept that by the end of 2002, Mr. Foote had decided that he would sell Foot Nort and take up residency in Canada. While Foot Nort and Norfolk Island had been his permanent residence since at least 1972, Mr. Foote was now intent on moving back to Canada. While his choice would likely have been to move to Edmonton, the practical reality for him was that Mrs. Foote was unwilling to move to Edmonton, so Victoria was the destination of the move. [422] He no longer intended, by late 2002, to indefinitely remain resident on Norfolk Island. But what is also clear is that he had no firm date by which he intended to sever his residency ties with Norfolk Island and take up Canadian or British Columbia residency. [423] The obvious new residence would be the Victoria condominium. Mr. Foote spent time at that condominium in the summers of 2001, 2002, and 2003. He had stated to various of his friends, acquaintances and family members that he intended to relocate to that residence. Anne believed he intended to make that move, and took steps in case that plan was unsatisfactory to her. [424] The question of what kind of intent would be required is a question that arose in several cases cited by the parties. That case-law is to change domicile consistent in its citation and application of the commentary of the Earl of Selborne in Lauderdale Peerage, (1885) 10 App. Cas. 692, at p. 740: ...a temporary residence for the purpose of healthy, travel or business does not change the domiciled. Further: (1) every presumption is to be made in favour of the original domicile; (2) no new change can occur without actual residence in a new place; (3) no new domicile can be obtained without a clear intention of abandoning the old. [Emphasis added.] [425] Intention without corresponding action was the decisive consideration in Fedeluk v. Fedeluk, a divorce action. The trial court ruled that the husband had not acquired a domicile of choice in Alberta and the action was dismissed. The husband was born in Manitoba and came to Alberta in 1963, where the parties married in 1966. After he got out of jail in 1967, he testified that he had no intention of going back to Manitoba, and that he planned to stay in Calgary for the time being, but wanted to go to the United States in about two years time. [426] Allen J.A. stated at para. 9: While residence is not the conclusive proof of domicile it constitutes prima facie evidence of intent.

Page: 80 [427] He also noted at para. 12 that: It is clear that the abandonment of a domicile of choice requires, as does its acquisition, the combination of factum and intention ... The intention to abandon is insufficient in itself to effect the abandonment so long as the person remains within the domicile or territory. [Emphasis added.] [428] Allen J.A. concluded that the husband had acquired a domicile of choice in Alberta, which had not been abandoned at the time of the hearing of the divorce. He was in Alberta, had no intention of returning to his domicile of origin, and had not taken any steps to displace that Alberta domicile. [429] The similarity with that case is that here, at some point, Mr. Foote acquired an intention to abandon his domicile of choice on Norfolk Island. That intention may well have begun to be formulated in the late 1970s when he began to contemplate retirement with Val, however I have concluded that Victoria retirement plan was certainly put on hold when the marriage broke down and he was thrust back into full time service in Japan. I have also concluded above that had Mr. Foote not established a domicile of choice on Norfolk Island in the 1970s, he certainly did so in the following decades when he lived there with Anne. During the period of 1984-2000 there is only minimal evidence of any plan of their retiring to Victoria. [430] Nevertheless, I do conclude Mr. Foote had intended to leave, permanently, and for Canada. The intention was not finalized until 2001 or 2002, but even then, it remained uncertain, with no definite plan or time frame for implementation. Mr. Foote continued to reside ordinarily on Norfolk Island until his death, despite his intention to move away at some future time. [431] In that sense, there are parallels between the present matter and Fedeluk v. Fedeluk. An intention alone is not sufficient basis to displace a domicile of choice (or origin). Also cited was Battagin v. Battagin, a case that has unusual facts and analysis, and deserves some commentary [432] This was a divorce action, where it was necessary for the wife to establish that she was domiciled in Alberta for the purposes of the divorce she was seeking. She had been born and raised in California and moved to Alberta with her husband. She resided in Whitecourt for the next 18 years, acquired property in Alberta and worked with her husband in his business. She eventually left the matrimonial home, without the children, fearing for her safety. She returned to California, partly to care for her ill mother [433] Cawsey J. found that she had acquired Alberta domicile and retained it. Her evidence was that when she left her husband and went back to California she intended to live in California permanently and had no plans to move back to Whitecourt. In that sense, it would seem she had lost her Alberta domicile of choice - the wife intended to live elsewhere, and had taken steps to achieve that objective. [434] The case turned on its somewhat unique facts and the onus of proof (against acquisition of the California domicile). Cawsey J. held it had not been proven that as at the relevant time (two

Page: 81 days after the petitioner left Alberta) she intended to abandon her Alberta domicile of choice, and that evidence of her subsequent conduct and intentions should not be taken into consideration. Cawsey J. ruled that at the critical time the wife had not abandoned her Alberta domicile of choice, and that he had jurisdiction to hear the divorce and corollary relief matters. [435] His decision, in my view, turns on the unique circumstances that two days after she fled from her home and children in fear for her safety was too short a period to be able to draw any inferences as to her intentions. The wifes subsequent intentions and conduct of staying in California could not be used to infer those intentions back to the time of separation. [436] In my view the rule that can be derived from this case is that the co-existence of intention and adoption of a new primary residence is a strict one - these two requirements must exist at the same time for a domicile of choice to arise. In that sense Battagin v. Battagin is consistent with the Australian case of Miller v. Teale. [437] What Battigan v. Battigan then indicates is that without Mr. Foote having relocated to Victoria and adopting the condominium there as his primary residence, there was no possibility that Victoria had displaced Norfolk Island as his domicile of choice. [438] As a consequence, this case is quite distinguishable, as the domicile of choice was found to have been kept (albeit for two days) despite the wife leaving and never returning to live in Alberta. In Battagin v. Battagin there is little question that later developments created a new domicile of choice. However, Mr. Foote never left Norfolk Island. He formed the intention of doing so, but after forming that intention did nothing definite or certain enough to sever his ties with his domicile of choice. C. Mr. Footes intention to relocate to Victoria

[439] There is clear and significant evidence that Mr. Foote had planned to change his domicile (his primary residence) to Victoria at some point in the next several years. That was his intention, but that intention was, in certain senses, provisional and under-developed. [440] Ownership of the condominium alone is not sufficient proof. Mr. Foote had at many times in his life owned multiple residences and rented yet more. For Mr. Foote to have established a new domicile of choice in British Columbia as a result of buying the condominium there and spending perhaps a month or 6 weeks there in each of the summers of 2001, 2002 and 2003, there would have to be clear evidence of an intention to abandon his longstanding domicile of choice on Norfolk Island and taking up residence in a new domicile. One can easily argue the that the Victoria condominium was just another summer or holiday home. [441] He had acquired a suitable residence in Victoria, and I can on the evidence conclude he had found life there to his liking, based on the time spent in Victoria during the summers of 2001, 2002 and 2003, and the various comments to his friends and family. But when would this move occur? Sometime after he met with Mr. Bentley in the summer of 2004? After he sorted out the lease problems with the gym? After he sold Foot Nort?

Page: 82 [442] There was contradictory evidence as to whether Mr. Foote would have moved from Norfolk Island without first selling Foot Nort. It represented a significant asset, but only a small part of Mr. Footes overall fortune. Despite his wealth, he clearly fretted over the cost of maintaining the property, even though he was spending at least half of each year there. In my view, it is unlikely that Mr. Foote would have moved from Norfolk Island without having first sold Foot Nort, but for exigent circumstances such as a change in tax structure. In that sense, the steps Mr. Foote had taken to that point (acquisition of the gym, investigation of valuation) were preliminary steps towards the objective of selling Foot Nort, but that primary residence was still very much his home up to his death. [443] That said, given Mr. Footes intense interest and concern on potential tax liability, he was almost certain to move away from Norfolk Island when (or if) the favourable tax regime there changed, but he thought that would not occur for at least two or three years from the spring of 2004. That then is a future contingency which, per Osvath-Latkoczy v. Osvath-Latkoczy, would not be sufficient to affect his current domicile. [444] Taxation issues are also relevant to his adopting a new residence in Canada. Mr. Foote was undoubtedly alive to the risks of being determined to be a resident of Canada. As testified to by Douglas, he was very, very careful about avoiding anything that might be seen as a declaration of Canadian residency. It is also unlikely that Mr. Foote would have moved from Norfolk Island and established residency elsewhere without being certain of the tax consequences of doing so and taking any necessary steps to implement the advice given to him. Part of Mr. Bentleys 2002 advice was that Mrs. Foote consider establishing an immigration trust, which would minimize the tax consequences to her of taking up residency in Canada. Having regard to Mr. Footes attitudes towards payment of income taxes, it is highly likely that recommendations such as this would have been followed up on before an actual move could take place. The evidence I have is that tax planning remained at the preliminary stage. [445] From all of this evidence, Mr. Foote had a plan to abandon his Norfolk Island residency, and take up residency in Canada. That plan was in the early stages of formulation. While some steps had been taken, Mr. Foote was not about to abandon that residency in favour of Canada without proper tax advice and planning, and without a plan in place to deal with Foot Nort. [446] Succinctly, Mr. Footes plans were not fully formulated, though his objective had been identified. He was in the early stages of planning. He was an organized man and driven to succeed in the things that he did. He had no definite date by which he had to cease being resident on Norfolk Island and take up residency elsewhere. The intention existed, and as time passed it clearly was crystallizing, however to the point of his death that intention still remained uncertain and remote. [447] This is a crucial point. I recognize that residency and domicile are different concepts. One can be resident somewhere without being domiciled there. And one can be domiciled somewhere without actually being resident there. But can you abandon a domicile of choice by deciding that at some unspecified date and after satisfying some unspecified concerns, you will move somewhere else?

Page: 83 [448] In my view, the answer to that question in this case is no. Mr. Foote had a domicile of choice on Norfolk Island for some 32 years. For all of that period, he intended to reside there indefinitely. Even in April, 2004 when he wrote to Mr. Bentley, he was still intending to reside on Norfolk island indefinitely. [449] If the evidence established a plan or a process that would have had Mr. Foote ensconced in Victoria by a certain date, or on the happening of certain events, the situation might be different. But apart from evidence of the intention to move to Victoria at some time in the future, Mr. Foote took no steps to actually abandon his Norfolk Island residency. Cohen v. Cohen is authority for the principle that a future, contingent plan is not sufficient to establish a domicile of choice. D. Conclusion

[450] Mr. Foote was clearly domiciled on Norfolk Island until at least late 2002. By late 2002, he planned to leave Norfolk Island and take up residence in Victoria, B.C. He would live in Victoria indefinitely. However, those plans remained relatively under-developed and preliminary. To interfere with a domicile of choice of such long standing and find that Mr. Foote had established a new domicile of choice in Victoria would require evidence of a certain plan, and of the steps taken to irrevocably implement such a plan. That evidence is lacking in this case. [451] It is clear that Mr. Foote did not displace his domicile of choice on Norfolk Island by acquisition of a new domicile of choice in British Columbia. He was very likely to do so in the future, but that likelihood and an intent to take certain preliminary steps to assist that relocation cannot, alone, displace his longstanding domicile on Norfolk Island. The intention component of adoption of a Victoria domicile has not proven - and I note that the onus to prove that change of domicile was on the Family. Their evidence did not meet that standard. iii. Adoption of the Victoria Domicile

[452] The second requirement to prove Mr. Foote had adopted a Victoria domicile of choice is that Mr. Foote must engage in overt acts that carry that intention into effect. What did Mr. Foote do to move away from Norfolk Island? It is not as if domicile can be changed by a simple declaration. It is also clear that domicile is not only a question of intention. As noted in Trottier v. Rajotte, domicile is more than intent, there must be some reality to it. [453] The act of acquiring a residence in another country is significant, but without more it is simply evidence of intention. As I previously noted, Mr. Foote had often had many different residences. The condominium was occupied for three summers (2001, 2002, and 2003), however the durations spent in there were no more then six weeks per year. In constrast, during that same period, the Footes spent 185, 193 and 214 days respectively on Norfolk Island. A. Chief or principal residences

Page: 84 [454] I note that residences can be ranked to assist in assessing domicile. In Udny v. Udny, at p. 458 the key residence was the chief residence: Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. [Emphasis added.] [455] Another relevant case that addresses the role of a chief or primary residence is Plummer v. IRC. This is a tax case, which turned on whether or not the taxpayer had established that she was domiciled in Guernsey. Hoffmann J. referred to Udny and Udny, quoting at pp. 294 and 295: Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. [456] He continued: I infer from this sentence ... that a person who retains a residence in his domicile of origin can acquire a domicile of choice in a new country only if the residence established in that country is his chief residence. [Emphasis added.] [457] He noted that abandonment of a domicile of choice does not required that the person cease altogether to reside there. He questioned whether the framers of any rule had contemplated persons with dual residences. The issue becomes then one of determining where the chief residence is. One might lose domicile by establishing another residence in another country, while still retaining a residence in the original jurisdiction, if the residence in the other country is the chief residence. [458] Despite the taxpayers evidence that she considered Guernsey to be her chief residence and thus her place of domicile, Hoffmann J. found that the tax commissioners were correct in basing their decision on the fact that the taxpayer had spent the greater part of the relevant years in England, and there had been no break in the pattern which would justify a finding that she had ceased to have her principal residence in England. She had not settled in Guernsey. [459] Here, it cannot be said that Mr. Foote established a new chief residence in British Columbia. On his death he had no residence at all in Alberta, other than a hospital bed and a hastily arranged apartment for Anne. His chief residence remained on Norfolk Island. Intentions changed, but not the fact of where Mr. Foote actually resided. Abandonment had not yet occurred. [460] In Plummer, the issue was as to whether Ms. Plummer had abandoned her domicile of origin of England in favour of a domicile of choice on Guernsey. The court held that she could not acquire a new domicile of choice by establishing intention, without proving that the alleged new domicile of choice was in fact her principal or chief residence. The same principle applies

Page: 85 here: a domicile of choice will not be lost by changing intentions and establishing a new residence elsewhere, unless that new residence becomes the chief residence. [461] Foot Nort was certainly the more substantial residence, it was also where Mr. Foote's spent most of his time. It is difficult to see how Foot Nort could have ceased to be his chief or primary residence by 2004. [462] The distinction between the place where one general lives, and a place where one visits was emphasized in the English tax case of Inland Revenue Commissioners v. The Duchess of Portland. The Duchess, the taxpayer in question, had a domicile of origin in Quebec. She married her husband who was domiciled in England and took up residence in England. She thus acquired a domicile of dependency in England. Throughout the marriage, she maintained close links with Canada and Quebec. She maintained her Canadian passport, had a bank account in Quebec, kept a house in Quebec and returned with her husband to Quebec for 10 to 12 weeks each summer. She and her husband had agreed that when he retired, they would leave England and live at her house in Quebec. [463] In 1973, the Domicile and Matrimonial Proceedings Act 1973 was enacted, which abolished the domicile of dependence. The Duchess argued that she had reacquired her domicile of origin by returning to Canada in 1974 (after the Act came into force) for her annual visit. The court disagreed and held she had retained her domicile of dependency as a domicile of choice (although it was agreed by her and the Crown that on the facts, she would have retained her domicile of origin and not acquired a domicile of choice in England but for the doctrine of the domicile of dependency). Her intention to return to Canada was a future one, and could not support an abandonment of her English domicile of choice merely by returning to the domicile of origin for a visit. [464] Nourse J. dealt with one of the Duchesss arguments as follows: ... Sir John Foster made an alternative submission to the following effect. He said, as a general proposition in relation to the abandonment of a domicile of choice, that a person who has the necessary intention both to cease to reside permanently or indefinitely in the country of his former choice and so to reside in another country in the future can actually cease to reside there merely by visiting the other country for a short period, perhaps only for a day, albeit that he then returns to the first country and lives there for another 10 years. It seems to me that submission cannot be correct. The intention to reside in a second country is merely to do so in the future. Such an intention can neither transmute the visit to the second country into residence nor cause there to be a cessation of residence in the first. Sir John said that this is a point not covered by authority. My respectful answer to that is that, but for this case, I would have doubted that it was a point for which authority was needed. [Emphasis added.] [465] This case has some parallels, especially in regard to Mr. Footes later years. Even though the Duchess never intended to abandon her Quebec domicile of origin, she did so out of the

Page: 86 operation of law. As I have found, whether Mr. Foote intended to abandon his Alberta domicile of origin or not, he did so by moving to Norfolk Island with the intention of residing there permanently and indefinitely. When the Duchess had the opportunity to reestablish her domicile of origin (as did Mr. Foote when he retired), she expressed the intention of doing so (as did Mr. Foote). However, she did nothing specific to abandon the English domicile of dependency she had acquired. Her visits to Canada remained just that: visits. Mr. Footes actions were similar. B. Characteristics of a chief or principal residence

[466] The preceding cases illustrate certain factors which can assist the court in its determination of which of competing residences is a persons chief residence or principal residence. As I noted, Hoffmann J. in Plummer v. IRC observed there are difficulties in identifying which, among a number of competing residences, should be identified by the court as a persons chief residence a place where that person may acquire a domicile. [467] This complication has become even more relevant in the modern world where there is dramatically increased personal mobility. Further, multiple residences are increasingly commonplace. A persons economic and business activities may be distributed over many jurisdictions. Mr. Foote is a nearly archetypical example of one of these persons, an individual with a broad international presence. [468] How then should a court analyse the residences of such a person? I believe that the developed jurisprudence of domicile indicates certain factors, but that there are others which also ought to be considered. I also clarify that in many cases no single factor will prove determinative, but they are usually relevant and can assist in sorting out what is a chief residence, and what is not. [469] First, residences for specific purposes cannot be a chief residence: Udny v. Udny; Lauderdale Peerage. That means any residence that can be characterized as a holiday or resort residence, or as a residence occupied principally for business purposes is very unlikely to be a chief residence: Inland Revenue Commissioners v. Duchess of Portland. [470] The amount of time a person spends at a residence is relevant, with greater durations suggesting that residence is the chief residence. That was the conclusion in Plummer v. IRC, and I agree this is relevant, for example, when comparing Mr. Footes Foot Nort and Victoria residences. [471] The scale of competing residences may be relevant. That is implied in the term chief residence, and I have concluded that in comparing Foot Nort and the Victoria condominium, it is hard not to conclude that if both were regularly occupied, the physically larger and more complex residence is more likely to be the chief residence. Similarly, where a person keeps his or her own personal property is potentially indicative: Flynn v. Flynn; Attorney-General v. Fitzgerald. [472] Another characteristic of a chief residence is that it is the place to which a person returns, time and again. This is what identified the chief residence in Re Urquhart Estate: that generally

Page: 87 transient person had one place to which he returned, again and again. That is also true of Mr. Foote, and Foot Nort. [473] Of high relevance is the location of other related individuals, particularly spouses and dependant children. Though not the case in the present matter, had Mr. Foote resided intermittently in both Victoria and Foot Nort, but Anne not accompanied him to Victoria, I would have concluded that circumstance strongly favoured Foot Nort as being Mr. Footes chief residence. [474] Another important consideration is a persons economic location. A useful shorthand for economic location is simply where a person is liable to pay personal income taxes. In the case of Mr. Foote, for much of his adult life that question had a somewhat different character: where he was immune from being required to pay income tax. Mr. Footes economic life was, of course, quite complex, with his businesses registered at times on Norfolk Island, others associated with the British Virgin Islands, and most of his business activities going on in Japan. The location of a persons savings accounts, credit cards, retirement finances and investments can all be relevant: Attorney-General v. Fitzgerald. Here, while it may be true that the majority of Mr. Footes wealth was not located in Norfolk Island, it is equally easy to conclude that he had yet to move his wealth and economic location to Canada. So, in this instance, it would seem Mr. Footes economic location is a largely neutral factor, though there is likely more of an association with Norfolk Island than Canada. [475] Legal relationships with a jurisdiction have probative value, especially where there is a tangible link to that jurisdiction. Citizenship, registered worker, immigrant, or resident status, and legal rights to participate in political processes are all indications of stronger link between a person and a residence. Mr. Foote had Canadian citizenship, but for most of his life after his first marriage that citizenship was a less tangible and relevant thing that his right to live on Norfolk Island, and participate in that locations political and other official processes. That favours Foot Nort being his chief residence, until he divorced himself from those links to Norfolk Island. [476] A persons identification may demonstrate closer affiliation for example when a person has a passport, drivers license, or other identification from one jurisdiction rather than another. [477] Likely relevant, but probably less determinative, are non-tangible associations, such as social and professional ties and associations with a jurisdiction. In Winans v. A.G. the absence of social integration was a key reason why the court concluded a persons length residence had not created a new principal residence. [478] Similarly, a persons principal residence may be indicated by the fact that residence is where the person receives communications, for example, as the persons mailing address. [479] I believe very little relevance should be placed on stated emotional and sentimental affiliations. In that sense, I would conclude that certain older cases have placed an inappropriate and unwarranted emphasis on a person, for example, describing themselves as a Glasgow man ( Bowie v. Liverpool Royal Infirmary), particularly where that person had very little more tangible

Page: 88 connection to a place. Domicile is better determined by a more pragmatic testing of where ones roots have developed. C. Mr. Footes principal residence

[480] Developments in this period do support the argument that Mr. Foote was moving towards adopting a new chief residence. It was around this time (2001-2002) that Mr. Foote began to express to his children his wishes to return to live in Canada on a more regular basis, as opposed to a wish to spend more time in Canada. By the summer of 2002 he had Mr. Bentley explore the tax ramifications of being resident in Canada, and he had McCuaig Desrochers investigate the possibility of Bridgette being able to emigrate to Canada. He also began to have discussions with a Norfolk Island realtor about valuing and marketing Foot Nort. Mrs. Foote bought her own property on Norfolk Island, in the event a move to Canada did not work out for her. Mr. Foote acquired the Top Shape Gym business, partly as part of the plan to sell Foot Nort. [481] It is clear that even having taken steps to return to Canada, Mr. Foote was in no particular hurry until March, 2004. Even in March 2004, when his health was failing and his frustration with the gym business and life on Norfolk Island generally was very high, he was writing to Mr. Bentley in terms of matters waiting until they got together again (which was likely not going to be until the Footes usual time for travelling away from Norfolk Island, July or August. [482] Mr. Foote had taken no steps to implement a tax plan. He was not one to leave unfinished business, and he had to deal with the lease issues on the gym business. Indeed, he noted to Mr. Bentley that the lease issues might interfere with his plans to come to Canada in 2004 if he and Mr. Hamilton-Irvine got into litigation over the lease. He had yet to deal with Foot Nort as it was never appraised and never listed. [483] One does not have to completely sever ones ties with the place of domicile to change domicile. It would certainly have been possible for Mr. Foote to abandon his domicile of choice on Norfolk Island and establish a new domicile of choice (or revert to his domicile of origin) without having to sell all of his possessions on Norfolk Island and vow never to return. He could have kept business interests there, and even Foot Nort, and still have abandoned his domicile there and acquired a new one in Victoria. [484] That said, I conclude Mr. Foote taking steps to sell Foot Nort and to address tax and immigration issues were preliminary steps in the process of adopting a new residence, but alone they fall far short of actually adopting a new domicile. Despite the intention to return to Canada, he did nothing to leave Norfolk Island. He may have done things to prepare to leave, but even the preparations were in the beginning phase. [485] By analogy World War II did not end when Britain won the Battle of Britain (that conflict continued for another four years in Europe). As Churchill said, that was not even the beginning of the end, but the end of the beginning. Here, Mr. Foote had not even ended the beginning by accomplishing any of the many things that needed to be done before he could move.

Page: 89 [486] When moving from one domicile and primary residence to the second, there can no doubt be a tipping-point where the attachment to the new residence surpasses the former chief residence. That tipping point was not reached. My conclusion would very probably have been different had the Footes spent the majority of their time in Victoria, transferred their personal property and economic location to that location, even if Foot Nort remained unsold but empty. However, the planned relocation never developed to that point. v. Conclusion

[487] I therefore conclude that Mr. Foote never acquired a domicile of choice in Victoria, British Columbia. His intention to make that relocation, while real, had nevertheless remains in a diffuse, and uncertain form, he had not specific time-line for that relocation and the groundwork for the move remained notational. Further, I conclude Mr. Foote had not taken the steps to adopt the Victoria condominium as his chief residence. Again, preliminary steps had been taken, but one cannot say that prior to his death Mr. Foote actually fixed himself, indefinitely, to that new location. 11. Did Mr. Foote abandon his Norfolk Island domicile of choice by steps to adopt a domicile in Victoria? a. Significant evidence

[488] There is not separate evidence on this question, rather the same evidence relevant to the question of whether Mr. Foote had adopted a new domicile of choice in Victoria is equally relevant on this issue. b. Analysis

[489] The applicants have argued in the alternative that if Mr. Foote had not adopted a new domicile of choice in Victoria, then he had at least abandoned his prior domicile of choice on Norfolk Island. This is a separate mechanism by which a domicile of choice might be ended, an alternative to one domicile of choice replacing a second domicile of choice. The traditional common-law rules would see the domicile of origin then revive once the first domicile of choice had been abandoned. i. Legal meaning of abandonment of a domicile of choice

[490] A useful point at which to start is to determine the criteria for the abandonment of a domicile of choice. A number of helpful cases were cited to by the parties. [491] Severing ties with the prior domicile of choice is crucial. In Udny v Udny, at p. 460, a domicile of choice was abandoned by literally disposing or eliminating any linkages to the domicile of choice:

Page: 90 He certainly relinquished that English domicile in the most effectual way by selling or surrendering the lease of his house, selling his furniture, discharging his servants, and leaving London in a manner which removes all doubt of his ever intending to return there for the purposes of residence. [492] Abandonment of domicile is the central question of In Urquhart Estate, a matter where domicile was relevant to issues of dependents relief and insurance proceeds. Mr. Urquhart was born in New Zealand in 1931, left there in 1961 and came to Ontario in 1961. He lived in Ontario until 1981. He and the applicant (with whom he had been in a common law relationship) had lived in various places in the U.S.A. from 1981 until his death in 1986. Austin J. at para. 62 held that on the evidence before him Mr. Urquhart had established a domicile of choice in Ontario by 1980. [493] That said, Urquhart lived a migratory life. In 1981, Urquhart moved to Washington, and in 1982 he moved to Florida. In considering whether Urquhart had abandoned his Ontario domicile, Austin J. quoted J.G. Castel, Conflict of Laws, 6th ed. (Toronto: Butterworths, 1988): Most Canadian courts have held that a domicile of choice continues until it is lost by leaving it with the animus non revertendi although a new domicile has not been acquired animo et facto. The intention must be one to abandon permanently. [Emphasis added.] as well as Dicey and Morris, The Conflict of Laws, 11th Ed. (London: Stevens & Sons, 1987), at 122, 147-148: Rule 7 An existing domicile is presumed to continue until it is proved that a new domicile has been acquired. Rule 13(1) A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently or indefinitely and not otherwise. Comment. A domicile of choice is lost when both the residence and the intention which must exist for its acquisition are given up. It is not lost by giving up the residence nor merely by giving up the intention. [Emphasis added.] [494] Austin J. concluded that Urquhart had never given up his Ontario domicile. The evidence did not support a finding that he intended never to return to Ontario. Justice Austin relied to some extent on the fact that he maintained, throughout the period he was away from Ontario, a room at a friends house, although the decision turned on the fact that he had never changed his intention as to Ontario domicile. That was Urquharts base of operations, and until he gave that up, his domicile would persist. [495] Flynn v. Flynn, [1968] 1 All E.R. 49 is notable mainly because it involves the domicile of the actor Errol Flynn. He was born in Tasmania, lived in the UK for about 18 months while he

Page: 91 was in his early 20s, then moved to California. He lived in California for seven years and became an naturalized citizen of the U.S.A. He was found to have acquired a California domicile of choice at that time. Some four or five years later he travelled to Jamaica, where he bought property. A year later, he bought a larger property, and his parents came to live there for about ten years. He travelled extensively from 1954 to 1957. Some of his absences from the U.S.A. related to matrimonial problems, income tax problems and creditor problems in the U.S.A. In the last year of his life, he arranged to have his furniture sent from California to Jamaica. [496] The issue for the court was whether Mr. Flynn had lost his domicile of choice in California. Megarry J. referred to the statement from Re Marrett, Chambers v. Wingfield, [188690], All E.R. Rep. 816 at 818: ...in order to lose the domicile of choice once acquired, it is not only necessary that a man should be dissatisfied with his domicile of choice, and form an intention to leave it, but he must have left it, with the intention of leaving it permanently. [Emphasis added.] [497] Megarry J. agreed that the reference to the need to prove that a man leaving the territory of his domicile with the intention of never returning is the intention is to never return to live there, which would not preclude returning for a visit (at page 11). [498] In reviewing the evidence, Megarry noted that Mr. Flynn went to Italy in 1952 after his contract with Warner Brothers was terminated. He stayed there until 1954, making a film. He was then absent from California from 1954 to 1957, although he may have retained some ... indefinite idea of returning to California one day when he had resolved his difficulties. His last link to California ended when his ability to redeem his house from his first wife expired in 1955. [499] Megarry J. held that Mr. Flynn had abandoned his California domicile at some time between 1952 and 1956. He held that (at p. 14): If the mere absence of any animus revertendi suffices (as I think it does), I hold that the change occurred when he left Warner Brothers and went to Italy, and this seems to have been in October, 1952. If, contrary to my opinion, a positive intention not to return is requisite, I think that intention was formed when he heard of his first wife taking his house in November, 1954. Whichever the date, his domicile of origin...revived. [Emphasis added.] [500] In 1958, Mr. Flynn began to build a home to his own specification on Jamaica, and finalized the plans in January, 1959. [501] Because of his expressed love for Jamaica, the act of shipping his furniture to Jamaica, and beginning to build a home there, Megarry J. ruled that Mr. Flynn had acquired a domicile of choice in Jamaica by August, 1958, and certainly by the time of his last arrival in May or June of 1959". (at p. 16)

Page: 92 [502] Jones v. Kline, [1938] 3 W.W.R. 65 (Alta. S.C.) was a family relief case where it was necessary for the claimant (widow) to contest the validity of a California divorce in Alberta on the basis of her husbands absence of domicile in California. The plaintiff and her husband were from Kansas, and came to Canada in 1901. They disposed of all of their assets in Kansas, and came to Alberta with the fixed intention to establish a permanent home in this new country. In 1918, the husband deserted the plaintiff. In a divorce action brought by him in California in 1919, he swore that he had been resident in California for the year prior to February 14, 1919, and the divorce was based on his stated residency in California. [503] Howson J. found that the statement as to the husbands residency in California was not accurate, as it conflicted with statements in Alberta proceedings in 1919 that he had been continuously resident in Alberta since 1902. The case appears to turn on the determination that at the time of the divorce, the husband had not abandoned his domicile of choice in Alberta, although it appears that the husbands residency in California (if it existed) was solely for the purpose of getting a divorce which would not result in the acquisition of domicile there. [504] At para. 16 he stated that: in order to lose the domicile of choice and revive the domicile of origin, it is not sufficient for the person to form the intention of leaving the domicile of choice, he must actually leave it with the intention of leaving it permanently. [505] In Re Rattenbury Estate, the testators domicile of origin was England. He acquired a domicile of choice in British Columbia by moving there and living, working and raising his family there for nearly 40 years. He returned to England, where he died six years later. His children by his first marriage in B.C. sought relief under the Testators Family Maintenance Act. Robertson J. approved and applied the statement from Fleming v. Horniman (1928), 138 L.T. 669: A domicile of choice is retained until both residence (factum), and intention to reside (animus) are in fact given up, but when once both these conditions have ceased to exist, it is abandoned as well in law as in fact. A mere intention is not enough so long as the person continues to remain within the territory of his domicile of choice ... A leaving of that territory is not enough, so long as the person continues his intention to reside permanently in the country of his domicile of choice ... But when the intention is formed and the residence is brought to an end, or the residence having been brought to an end, the intention is formed, then there is a complete abandonment of the domicile of choice. The intention here meant is a formed intention to leave the country of the domicile of choice for good. [Emphasis added.] [506] In Montizambert Estate (Re), the deceased had been born in Quebec in 1875. She died intestate in London, England in 1964. When she was seven, she moved with her parents to Kingston, Ontario, where she was educated and remained until she was 37. After her fathers death, her mother moved to England. The deceased followed her mother to England, and became

Page: 93 the London correspondent for the Montreal Gazette, a position she held for the next 33 years to 1945. She did not return to Canada in those 33 years. After retiring, she returned to Canada for some uncertain period in 1946 and for a lengthier period from December 1950 to October 1954. In 1953 she wrote the English tax authorities from Canada stating: I have now made a permanent home with friends at this address.. However, she returned to England in late 1954 and remained there for the next ten years before her death. [507] The court concluded that the deceaseds actions spoke louder than her words. Her return to England after her declaration of permanent residency either negated the loss of her English domicile of choice acquired by 33 years of living and working there, or she again abandoned her Quebec domicile of origin for England by returning there for the last ten years of her life. [508] All these authorities are consistent - abandonment means a person leaving their previous domicile of choice, permanently. [509] Last, Fedeluk v. Fedeluk makes clear that the test for abandonment and adoption of a new domicile of choice are in many senses parallel - both require intention, and both require acts that permanently end the prior domicile, specifically removing oneself from the previous domicile.: 12 It is clear that the abandonment of a domicile of choice requires, as does its acquisition, the combination of factum and intention: See Jones v. Kline [1938] 3 WWR 65, at 75 (Alta.) and other cases cited at p. 409 of Power on Divorce, 2nd ed. The intention to abandon is insufficient in itself to effect the abandonment so long as the person remains within the domicile or territory: See Zanelli v. Zanelli (1948) 64 TLR 556, 92 Sol J 646. [Emphasis added.] ii. Intention to abandon

[510] My commentary on Mr. Footes intention to abandon parallels that of his intention to obtain a new domicile of choice in Victoria. I conclude that those considerations are equally applicable - Mr. Foote had an intention to abandon Norfolk Island, however that was a general and future intention, and not especially developed to the point of his death. He did not do enough to formulate a clear plan and implement that plan for me to hold that he gave up or abandoned his Norfolk Island domicile. iii. Permanent leaving the prior domicile

[511] Mr. Footes physical connection with Norfolk Island changed very little from the time of the sale of his business in 1997 until the time of his death. His intentions changed, but he was still very much a Norfolk Island resident until his death in May, 2004. [512] Simply put, while it might be said that Mr. Foote formed the intention to leave Norfolk Island for good, he did not, physically, bring his residency there to an end. He may have started the process, but his ability to end his residence was contingent on resolving the gym business issues, dealing with Foot Nort in some way acceptable to him, and making necessary tax

Page: 94 arrangements. Before those matters were dealt with, Mr. Foote would not do anything to jeopardize his Norfolk Island residency status, and his nature was such that he would not leave a business and property unsettled. His communications in 2004 make clear he had sunk his teeth into those matters and they were a key focus of his attention. [513] The evidence thus establishes clearly that Mr. Foote never gave up his residence on Norfolk Island. In his case, the intention to abandon permanently may have been present, but domicile is not lost until there is a permanent abandonment of residence. The reality of where Mr. Foote lived did not change before he died. Mr Footes length habitual residency on Norfolk Island for 32 years is fully consistent with his acquisition of a domicile of choice there - that domicile was never abandoned. iv. Conclusion

[514] Having regard to the Alberta law relating to revival of the domicile of origin, despite the fact I have found that Mr. Foote did not establish a new domicile of choice in British Columbia, did he abandon his domicile on Norfolk Island such that his Alberta domicile of origin revived? In the common-law, abandonment has two parts - a choice to leave ones present domicile of choice, and taking action to leave that domicile, permanently. I conclude he did neither. [515] If I am wrong and his Norfolk Island domicile was abandoned, and that following common-law principles Mr. Footes Alberta domicile of origin revived, then I would consider that outcome to be an absurd result, and as per Re Montizambert Estate I would conclude that Mr. Footes domicile must be British Columbia. 12. By returning to Edmonton for treatments and making a conscious decision to die in Alberta, did this establish a new domicile of choice in Alberta, or revive Mr. Footes domicile of origin in Alberta? a. Significant evidence

[516] As I have previously summarized, Mr. Foote health had begun to deteriorate in 2003 starting on a cruise with David Bentley from New York to Montreal. During this journey, Mr. Foote began to feel unwell, and sought medical assistance in Hong Kong. He was diagnosed as having pneumonia, and was advised not to travel. [517] On his return to Norfolk Island, 2003, he continued to feel unwell. Although Mr. Foote continued with his normal activities on Norfolk Island, including his ongoing dealings with the gym business, and continued to entertain (including hosting his friend Allan Warrack for 10 days in March, 2004), his health did not improve much. [518] He was not well enough to go on a planned family holiday to the Galapagos Islands over the Christmas season, although the holiday went on without him and much of the rest of the family (including Anne Foote) enjoyed that holiday. During that time Mr. Foote remained at Foot Nort.

Page: 95 [519] Medical attention on Norfolk Island proved unhelpful, and in April, 2004, Mr. and Mrs. Foote travelled to Sydney, Australia, for specialists appointments. There, Mr. Foote received the news that he had cancer and would require extensive treatment. He immediately contacted Mr. Bentley, and had Mr. Bentley make arrangements for Mr. Foote to be seen by doctors in Edmonton and at the Cross Cancer Institute. [520] Mr. Foote returned to Norfolk Island only long enough to take care of a few items of business, and then he and Mrs. Foote travelled to Edmonton. Once in Edmonton, his condition deteriorated very rapidly. Following a diagnosis in early May that suggested he might have three to six months to live, Mrs. Foote rented an apartment in Edmonton with Mr. Bentleys assistance. Unfortunately Mr. Foote died within a week of receiving the bad news as to his condition. [521] Mr. Foote was in considerable pain and discomfort during the last several days of his life, and he chose to take pain relief measures that would put him in a coma before his death. He died in hospital in Edmonton on May 17, 2004. b. Analysis

[522] Counsel for Anne Foote argues that Mr. Foote had, via his return to Edmonton to obtain treatment, either: 1. made a conscious decision to die in Alberta, thus establishing a new domicile of choice in Alberta, or abandoned Norfolk Island as a domicile of choice by leaving that island, never to return, which then revived Mr. Footes domicile of origin in Alberta. i. Travel for treatment

2.

[523] First, the Canadian case-law makes very clear that where a person travels to a location to obtain medical treatment, that change of location does not affect domicile. In Trottier v. Rajotte, at p. 208, the Supreme Court of Canada cited Lauderdale Peerage: 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. ... [524] This is also illustrated by the reasoning in Attorney-General v. Fitzgerald where a testator, an Irishman, acquired a domicile of choice in India where he remained for many years. He then moved to England where he lived for some nine or ten years, although the bulk of his assets remained in India and his affairs were never settled there. He made a will in England in the last year before leaving there. Being in bad health, he sold his house and furniture, and went to live in Madeira. He kept his bank account and some securities in England. After two years in Madeira, he made a will describing himself as now residing in Madeira. The court noted at p. 1038 that the manner in which a person describes himself in legal instruments is always one of

Page: 96 the circumstances looked at in determining questions of domicile. He moved to Lisbon, where he died. [525] He declared to his brother that if he ever returned he would take up residence in Limerick. The Court considered it significant that the testator described himself of Clifton, England in his penultimate will and that he had only gone to Madeira and Portugal for health reasons. The Court was satisfied that he had abandoned his Indian domicile of choice and acquired a new English domicile of choice. The travel for health purposes was irrelevant. [526] Interestingly, in Attorney-General v. Fitzgerald the court concluded that even though the deceased no longer resided in England, because his books, trunks and other property had been left in England (pp. 1038-39), and he had done all of his banking in England, he retained his English domicile of choice. The Court was satisfied that the testator intended to end his days in Ireland, but that intention (at p. 1039): ... even if it were more definite, is not sufficient to have that effect (abandoning his English domicile); it would be only one of the ingredients of domicile; it shews the animus, but no act to carry it into effect. [527] The Crown thus received its legacy duty, as the domicile of origin was found to be abandoned in favour of a domicile of choice in England. The facts of the testators life were such that he lived in England indefinitely, with only a desire to return to Ireland some day, but with no specific plan to ever do so. When he left England for Portugal, it was not intended to be permanent and he was only in Portugal for health reasons. His continued connections to England by way of keeping property there and any future intention to abandon England was insufficient to revive his Irish domicile of origin. [528] The facts in Attorney-General v. Fitzgerald have a certain similarity to aspects of the last years of Mr. Footes life. I have concluded that Mr. Foote had also made future plans to move to a new domicile, but like the Irish testator, Mr. Footes primary residence remained intact while travel was conducted for health purposes. ii. Relocation to die

[529] Counsel for Anne Foote argued that different legal principles apply in this kind of scenario, as Mr. Foote had not travelled to Edmonton to obtain medical care, but rather had returned to Edmonton to die. A passage from G.C. Cheshire, P.M. North, J.J. Fawcett & J. Carruthers, at p. 168-169 was cited to illustrate the distinction between seeking treatment, and seeking a place to die: The case of an invalid who settles in a foreign country for the sake of his health, not merely for the purposes of convalescence, should on principle cause no difficulty. The principle is that unless a man is a free agent his adoption of a new residence does not affect a change of domicile. He must have an alternative - either to stay or to go. But it would seem that an alternative is open to every invalid. To

Page: 97 take even the extreme case, if a man, being assured by his doctors that he has only a few months to live, decided to spend the short remainder of his life in a country where the climate may alleviate his suffering, it would seem clear, if all sentiment of pity is dismissed, that of his own volition he has chosen a new and permanent home, since he intends to continue his new residence until death. The residence and intention essential for a change of domicile are present. [Emphasis added.] [530] The authors go on to say that this scenario is extreme, and note that Lord Kingstown had commented in Moorhouse v. Lord (1863), 10 HL Cas 272 that this result is revolting to common sense and the common feelings of humanity. Nevertheless, it would seem consistent with the principles of domicile that where a person had moved to a location with the intent of being at that location for the rest of his natural life, that the requirements for a new domicile of choice would have been met. [531] And so it was argued that Mr. Foote had made a new plan, and implemented it once the seriousness of his medical condition was known. He returned to Edmonton to die in the land where he was born. [532] This proposition faces a number of issues. Yes, Mr. Foote clearly had immediately taken steps in response to his illness. He chose to move to facilities where he could be treated for his cancer. He clearly wanted his cancer treatments to be in Edmonton, at the Cross Cancer Hospital, close to family and friends. I also conclude that he chose Edmonton and specifically the Cross Cancer Hospital for the quality of the treatment available at that facility, and due to his relationship as a philanthropist with that institution. Simply, here was a location he could access where he could anticipate excellent medical attention in a specialist institution for the condition he faced. [533] Second, when he first came to Edmonton for treatment, it was not to reside here - it was to be treated and get well. His recovery was uncertain when he first arrived, and it cannot be said that he intended to move to Edmonton. He came with a suitcase. Unfortunately, while here, his condition deteriorated very rapidly. I suppose it could be said that at some point, post-arrival in Edmonton, Mr. Foote made a conscious decision to spend the rest of his days in Alberta. However, that was not his intention when he first arrived, but became his decision once it became clear that he was dying. At that point Mr. Foote made a choice to follow a course of treatment that eased his suffering and resulted in his death in Alberta. But to the extent that Mr. Foote was involved in that choice, there was no alternative. He was in no condition to travel. While he had not come to Edmonton to die, he was sadly faced with the choice of dying in Edmonton after a period of suffering, or dying in Edmonton with the suffering minimized. A Hobsons choice should not be considered to be a deliberate decision to live out ones days in a place. [534] Third, I am uncertain that domicile should ever be determined solely by a persons choice to die in a particular location. Expressed as a maxim, hope springs eternal. When someone chooses to go to a place for medical reasons, I would assume that for almost anyone there will remain some uncertainty and hope for recovery. Normally, a person faced with a medical crisis that requires travel will say I choose to go to a place, and probably I will die of my illness while

Page: 98 there - but perhaps I will recover. In light of that latter possibility, no matter how slim, that persons intent is not to spend the remainder of their life at the place of their treatment. Rather, it is until one of two specific events occurs - until death or recovery. [535] Therefore, if there is a principle that any decision to live ones remaining days in a place will result in that place being the persons domicile at the date of his or her death, I decline to follow it: Moorhouse v. Lord; G.C. Cheshire, P.M. North, J.J. Fawcett & J. Carruthers, at p. 168169. There may be instances where such a finding is appropriate, but that would depend on a number of circumstances, such as the length of time remaining, the disposition of property in the former location, the acquisition of property in the new location and the nature of the residence in the new location, to name some of the factors. [536] But a move to a hospital bed and a decision relating to palliative care that results in ones death in that location would not, of themselves, constitute an abandonment of the former domicile and acquisition of a new domicile of choice. The first was relocation for a purpose, the latter was not a choice. iii. Abandonment of the Norfolk Island Domicile

[537] Similarly, travelling to obtain treatment or medical care would not mean abandonment of a prior domicile, and any resulting reversion to the domicile of origin. I have previously concluded that Mr. Foote had not abandoned his Norfolk Island domicile of choice by the act of buying the condominium in Victoria in 1999, spending some weeks there in each of 2001, 2002 and 2003, and formulating an intention to establish residency a domicile of choice in Victoria at some unspecified time in the future. [538] I cannot see how a plan to seek treatment for a medical condition could provide a stronger indication of Mr. Footes permanently having left Foot Nort for another domicile, and so will not address this question any further. iv. Conclusion

[539] As a result, Mr. Foote did not abandon his domicile of choice in Norfolk Island such that his Alberta domicile of origin revived. Nor did he abandon his domicile of choice on Norfolk Island and adopt a new domicile of choice in Alberta by consciously returning to Edmonton for treatment and accepting treatments that would see his life end here. 13. Did Mr. Footes domicile of origin, Alberta, revive?

[540] I have concluded the Norfolk Island domicile of choice was never abandoned by Mr. Foot. This finding of fact is what makes the question of application of the lex fori or the law of the last domicile irrelevant. However, applying the lex fori (as I have concluded is appropriate), as there was no abandonment of the Norfolk Island domicile of choice, Mr. Footes Alberta domicile of origin did not revive.

Page: 99 14. Conclusion

[541] I therefore conclude that Mr. Footes domicile at death was Norfolk Island. He had adopted that domicile at the time he became a resident of that island, in April 1972. 15. Summary of legal principles of domicile considered

[542] I have arrived at several conclusions that may seem to depart from an number of the previously decided cases in this area. I have expressly declined to follow some authorities. [543] As is obvious from my reasons above, most of this case turns on the facts and not the law. The analysis of domicile is primarily an analysis of the facts, and each case will undoubtedly turn on its own unique facts and circumstances. My review of relevant case-law identified by the parties is obvious evidence of that. [544] But the facts must be viewed from the correct legal framework. I have concluded that the correct legal framework includes the application of certain principles that may have not previously been clear from the authorities. I repeat them in this summary: 1. The lex fori is to be applied in domicile cases. Reference to the laws of jurisdictions other than the lex fori, to see if domicile there has been abandoned or lost, is inappropriate. The civil onus - the balance of probabilities - is the correct standard to apply in domicile cases. There is no intermediate or quasi-criminal standard to prove the displacement of the domicile of origin. To the extent that the domicile of origin is difficult to replace, that difficulty must be determined in accordance with the normal civil standard on the party seeking to establish that the domicile of origin has been replaced. Similarly, whether a change of domicile involves a relocation within or between countries is irrelevant, as are the language, climate, ethnic, cultural or religious characteristics of the different possible domiciles. Any analysis of domicile in the 21st century must reflect the global village reality of modern life. Domicile now has much more to do with the economic realities of ones life than it does with sentiment or loyalty to ones place of origin. Requiring an intention that a domicile of choice be the place where one intends to reside for the rest of ones life, or to end ones days there, overstates the necessary intention. Rather, the intention is accurately described in Udny v. Udny: not for a limited period. There is a key difference between indefinite and permanent, and indefinite residence is sufficient to establish domicile. A period of residence is indefinite unless that period of residence has either a predetermined end point, or the resident has clear and identified criteria on which that residency will end.

2.

3.

4.

5.

Page: 100 6. Where one has multiple residences, domicile will be found to be at the chief or principal residence. Identification of the chief or principal residence is best conducted by reference to tangible factors including economic considerations, rather than on sentiment. Relevant factors include: a) b) c) d) e) f) g) h) i) j) whether the residence is used for business, holiday or vacation purposes, the relative amounts of time spent in each residence, the scale and the presence of personal property, the presence of family members, particularly spouses and dependants, a pattern of return to that residence, the economic linkage of the person to that residence, legal relationships to a jurisdiction, official identification and documentation, whether the residence is the contact point for a person, and by a persons social integration with the community in which the residence is located.

7.

A common-law judge has a residual authority to depart from the revival of the domicile of origin to avoid an absurd result.

16.

Costs

[545] Costs may be spoken to within 30 days of the day of these reasons. 17. Concluding Remarks

[546] I am indebted to all counsel for the manner in which this case was prepared, organized, and conducted. In an era marked with aggression and a lack of civility and cooperation, this trial was a model of how trials should focus on the facts and the issues to assist the trier of fact to come to his or her conclusions.

Page: 101 Heard on the 14-17, 20-24, 27-30 days of April and May 1st, 2009. Dated at the City of Edmonton, Alberta this 13th day of November, 2009.

Robert A. Graesser J.C.Q.B.A. Appearances:

John M. Hope, Q.C., and Bryan Kwan Duncan & Craig LLP for Trudy David, Douglas Foote, Debbie Entwistle, Dean Foote & Laurie Evans Scott J. Hammel and Sandra L. Hawes Miller Thomson LLP for Anne Foote Daniel Hagg, Q.C. Bryan & Company LLP for the Estate of Eldon Douglas Foote Bruce Comba Emery Jamieson LLP for the Lord Mayors Charitable Fund Karen Platten and Anita Mohan McLennan Ross LLP for the Edmonton Community Foundation