Alberta Law Reform Institute campaigning to replace Dower Act

By Delon Shurtz - Lethbridge Herald on December 23, 2022.

LETHBRIDGE HERALDdshurtz@lethbridgeherald.com

The Alberta government is being asked to replace century-old legislation that hasn’t been updated since the Second World War.

The Alberta Law Reform Institute (ALRI) is recommending the government replace the Alberta Dower Act, which is First World War-era legislation primarily introduced to protect wives from having their homes sold by their husbands. The intent of ALRI’s recommendation is to strengthen the Act by replacing the legislation instead of simply amending it.

“The existing Dower Act has enough problems with it that we think it would be easier and cleaner to start over with new legislation,” says Laura Buckingham, legal counsel for the ALRI. “We’d be able to have a fresh start that still has the important rights but doesn’t carry over any excessive baggage.”

The ALRI has submitted 51 recommendations to the provincial government, but with a primary focus on a couple of features that prevent non-owner spouses from losing their homes unexpectedly.

Early in the 20th century, women in Alberta and the other prairie provinces campaigned for legislation that would recognize a married woman’s interest in the family home. They argued that if a husband could unilaterally sell, mortgage, or give away the family home, his wife and children were at risk of becoming homeless. They also argued that because women’s work contributed to acquiring and maintaining property, they deserve some rights in the property.

Alberta and the other prairie provinces adopted the recommended legislation, and Alberta’s original Dower Act included the two key features that are part of the Dower Act today. It prohibits a married man from selling, leasing, mortgaging, or otherwise disposing of his homestead without his wife’s consent, and upon a married man’s death, it grants his widow a life estate in the homestead.

According to the 2016 Census, 1.1 million Alberta households are owner-occupied, and even though the majority of them are co-owned by both spouses, ALRI points out even the smallest percentage of homes owned solely by one spouse could amount to tens of thousands of couples who may depend on the Dower Act.

“Many people may not realize that the Dower Act protects a spouse from losing their home,” Buckingham says. “Without it, the owner could sell or mortgage the couple’s home or leave it to someone else in their will.”

Buckingham says the ALRI reviewed the legislation, consulted with experts and conducted an online survey, and determined existing protection is still important to Albertans.

“They benefit from this protection even if they do not know about it,” Buckingham says.

Currently, however, the law does not apply to common-law spouses, which represent a growing number of couples in Alberta. The ALRI recommends extending protection to that group of people.

The institute also wants the law to apply to mobile homes. Non-owner spouses who live in mobile homes are currently not protected by the law.

The Dower Act applies only to land, Buckingham explains, which comprises a single-family home on a lot, a home on a quarter section of land or smaller area on a farm, and even a condominium unit.

“But it doesn’t apply to a mobile home that’s on a rented site because a mobile home isn’t land,” Buckingham explains. “People told us a home is a home, and they wanted to see all homes treated the same.”

Buckingham says there are nearly 50,000 mobile homes in Alberta, “so it’s a fairly large number of people who have been potentially affected.”

Most of the remaining ALRI recommendations are intended to streamline transactions, make things more efficient and clarify the law so Albertans can better understand their rights and more easily deal with their property issues.

The ALRI submitted the recommendations to the government earlier this fall, and Buckingham hopes to have a response within a couple of years. Even if it takes longer, Buckingham is optimistic the government will implement the recommendations and create new legislation.

“There’s no guarantees but it’s something we’d like to see.”

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