Earlier this year, the courts considered the ramifications of a married person swearing a false affidavit as to their marital status in relation to the transfer of real estate. Joncas v Joncas (2017 ABCA 50) once again sets out the law with respect to dishonest dispositions of property under section 11(1) of the Dower Act.
In this case, the husband and wife had resided on the Property for several years, qualifying it as a “homestead” under the Dower Act. The husband was the only registered owner on the Certificate of Title. The husband sought to sell the Property and during the sale process, the husband swore an affidavit stating that neither he nor his spouse had ever lived at the Property during their marriage. The Property sold for $325,000.00, and the net proceeds of the sale were $121,019.00.
The Dower Act
The Dower Act offers statutory protection for a spouse that is not registered as an owner on the Certificate of Title (the “non-titled spouse”) for the matrimonial homestead. It imposes damages for a disposition by the spouse that is registered on title (the “titled spouse”) without the consent of the non-titled spouse. The Dower Act requires the consent of the non-titled spouse in order to sell the property, ensuring that the non-titled spouse has notice of the sale and is not unduly displaced from the property by it.
The courts granted an award of $162,500.00 to the non-titled spouse, being half of the consideration (sale price) received for the property. The Court has no discretion for calculating damages relating to section 11(2) of the Dower Act. It is the greater of (i) half of the consideration paid or (ii) half of the value of the land. While this may result in large penalties amounting to more than the proceeds received by the titled spouse, the Court indicated that this is appropriate given that the purpose of such damages is to deter the titled spouse from acting dishonestly.
Dower Act (Alberta) RSA 2000, c D-15
11(1) A married person who without obtaining
- (a) the consent in writing of the spouse of the married person, or
- (b) an order dispensing with the consent of the spouse,
makes a disposition to which a consent is required by this Act and that results in the registration of the title in the name of any other person, is liable to the spouse in an action for damages.
(2) The amount of the damages for which the married person is liable to the spouse is a sum equivalent to
- (a) 1/2 of the consideration for the disposition made by the married person, if the consideration is of a value substantially equivalent to that of the property transferred, or
- (b) 1/2 of the value of the property at the date of the disposition,
whichever is the larger sum.