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INTERESTS IN LAND - Dower rights - Statutory dower - Homesteads - Homestead legislation - Dower rights of non-owning spouse - Remedies of non-owning spouse - Action in damages

Friday, March 31, 2017 @ 8:53 AM  


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Appeal by the husband from a chambers judge’s decision awarding damages to the wife in a Dower Act claim. The parties separated after a 21-year marriage. The husband owned a house prior to the parties’ marriage. The parties had lived there for several years until they moved into the matrimonial home, at which time the previous house became a rental property. Upon separation, the wife remained in the matrimonial home and the husband sold the house without her consent to fund the purchase of a new home. The wife commenced an action pursuant to the Dower Act and obtained a judgment for damages. The chambers judge found that the Dower Act could be applied without regard to their matrimonial property action because otherwise the relevant section of the Dower Act would be meaningless. The chambers judge noted that, unlike similar legislation in other provinces, there was no discretion in the remedy once the statutory conditions were met. The husband appealed arguing that the chambers judge erred in determining the issue by way of summary judgment, and that the chambers judge incorrectly interpreted the law with respect to the interaction between the Dower Act and the Matrimonial Property Act.

HELD: Appeal dismissed. The chambers judge’s decision to proceed with the Dower Act summary judgment application was a reasonable exercise of discretion with which the court would not interfere. The chambers judge was correct in reasoning that the two statutes had different purposes and that the Dower Act claim could and should be addressed without considering the matrimonial property claim. The Dower Act was limited in its scope. It applied only to “homesteads” as defined in the Act, and provided non-owner spouses with specific protections and rights. The Act did not take into account other property the parties owned. The Matrimonial Property Act had a much broader aim and purpose in that it ensured equal distribution of matrimonial property. It was not punitive or protective, covered a wide range of property, and granted courts discretion in making the final distribution to ensure it was fair and equitable. The Matrimonial Property Act had flexibility that the Dower Act lacked. The Matrimonial Property Act was not intended to limit or interfere with the Dower Act’s operation. The chambers judge did not err in concluding the purposes of the two statutes were different.

Joncas v. Joncas, [2017] A.J. No. 113, Alberta Court of Appeal, P.A. Rowbotham, B.L. Veldhuis JJ.A. and J. Strekaf JJ. (ad hoc), February 9, 2017. Digest No. 3644-015