The Dower Act came into effect in 1917 and, though it has been amended since, it has not changed substantively since 1948. Now, the Alberta Law Reform Institute (ALRI) is reviewing the Dower Act and seeking feedback on whether it should be reformed or repealed.
What are Dower Rights?
Dower Rights protect a married person’s right to live in their home if the house and land are solely owned by their spouse. Dower Rights only apply to married people and are intended to protect a non-owning spouse (the “dower spouse”) from the actions of the other spouse (the “owner spouse”) relating to the homestead. The Dower Act protects the dower spouse from losing their home in 2 ways:
- Dower consent required: The dower spouse is required to sign their consent when the owning spouse attempts to sell, transfer, or mortgage the home. An owning spouse that disposes of the home without the dower spouse’s consent is guilty of an offense and a penalty ranging between a fine of no more than $1,000 or a term of imprisonment of no more than 2 years.
- Dower’s life estate: The dower spouse acquires a life estate in the home upon the death of the owner spouse. This means the dower spouse is entitled to remain in the home and have full use of it following the death of the owner spouse for as long as the dower spouse lives. This does not mean that the dower spouse can then unilaterally dispose of the home upon the owner spouse’s death without further direction from the Courts.
Failure to comply with the Dower Act requirements results in the dower spouse having a claim for damages against the owner spouse equivalent to half the sum of the value of the disposed property. For example, in Joncas v Joncas, a 2017 decision from the Alberta Court of Appeal, the husband sold a property without first obtaining the wife’s dower consent. The husband sold the property for $325,000 and the wife sued, claiming $162,500 (half the value of the property). The Court of Queen’s Bench granted the wife’s relief, which was affirmed by the Court of Appeal, dismissing the husband’s appeal. The Court of Appeal strictly applied the Dower Act, specifically noting that Parliament did not heed the 1995 recommendation by ALRI to abolish the Dower Act and roll its protections into the existing Matrimonial Property Act. The Court of Appeal further noted that the Dower Act did not offer any discretion to calculate damages or valuating dower rights, thereby entitling the wife to half the gross value of the property, not the net value. This case is evidence that the Courts strictly apply the Dower Act and its provisions to family law cases.
The Dower Act impacts many Albertan families because of its intersection with real estate, family, bankruptcy, and wills and estate law.
What issues does the Dower Act have that should be reformed or repealed?
- Exclusion of Adult Interdependent Partners (“Common Law”): Per the Dower Act, dower rights only apply to married couples. The reality is, an increasing number of couples decide not to marry and live as AIPs (Adult Interdependent Partner), growing their families and purchasing property just like married couples. The Dower Act, as drafted today, does not extend its protections to a non-owning partner in an Adult Interdependent Partnership. By contrast, the Family Property Act extends the law of property division to AIPs the same as it does to married couples as of January 1, 2020.
- Narrow definition of “homestead”: The Dower Act defines a homestead as a parcel of land on which a house occupied by the owner is situated. This definition does not extend protection to renters or other contemplations of housing in Alberta today. According to the 2016 Census, 75% of Albertans live in an owner-occupied residence. By contrast, the Family Property Act defines the “family home” as property that is owned or leased by one or both spouses or adult interdependent partners as their family’s home.
- Strict penalties for non-compliance: An owner spouse that disposes of property without obtaining the dower spouse’s consent is guilty of a quasi-offense, punishable with a fine up to $1,000 or a term of imprisonment up to 2 years. The dower spouse can also bring a claim for damages against the owner spouse for half the value of the disposed property. As the Court of Appeal commented in Joncas, the Dower Act does not offer any flexibility or discretion in awarding damages. It does not allow the Court to consider the existing equity or net proceeds of the disposed property, thereby resulting in the owner spouse sometimes being ordered to pay damages that are greater than what they received from the sale.
ALRI has undertaken a project to review the Dower Act and is currently seeking feedback regarding the challenges and complications arising from dower rights.
At Hayes Fry Law, if you have questions about dower rights and how to ensure you are in compliance with the Dower Act, we can definitely help you out. Call us directly at 780-831-7370 if you need to book a consult. We redefine how a lot of things are done in our industry, including family law.