By: Jonnette Watson Hamilton
PDF Version: The Harsh Consequences of Ignoring the Dower Act
Case Commented On: Joncas v Joncas, 2017 ABCA 50 (CanLII)
If you are a married Albertan with a piece of real property registered in your name alone, and you have resided on that property since the date of your marriage, then you cannot sell, mortgage, lease for more than three years, or otherwise dispose of that property without the written and acknowledged consent of your spouse. The Dower Act, RSA 2000, c D-15, sections 1(d), 2, 4 and 5 say the property is a “homestead” and you need consent to dispose of it. The purpose of the 100-year-old Dower Act is to provide a home for a widow/er — a right to a life estate on the death of the married person who owned the homestead (Senstad v Makus, [1978] 2 SCR 44 at 51, 1977 CanLII 201 (SCC)). And there would not necessarily be a home for the widow/er if the married person could unilaterally sell or otherwise dispose of the homestead, and so they cannot. The purpose of the Dower Act and the way it achieves its purpose was commendable one hundred years ago, when married women could not acquire land by homesteading, there was no social welfare safety net, divorce was far less common, life expectancies were much shorter, and families were far less complex. Today, however, things are different and the Dower Act can come into conflict with the Matrimonial Property Act, RSA 2000, c M-8 on the breakdown of a marriage. The Matrimonial Property Act is all about the fair distribution of matrimonial property between spouses or ex-spouses, but its fairness considerations are absent from the Dower Act. The potential for financially disastrous consequences is high when a married person with a homestead, whose marriage has broken down, is unaware of the requirements of the Dower Act and the harshness of the consequences of ignoring those requirements. Joncas v Joncas is an excellent example of the conflict and a cautionary tale.