Law Reform Commission of Saskatchewan Issues Consultation Paper on The Homesteads Act, 1989
August 16, 2016
BY Sebastian Ennnis
The Law Reform Commission of Saskatchewan recently issued a consultation paper on The Homesteads Act, 1989. The Act protects spouses who do not own their homes against the sale, mortgaging, or other disposition of the spousal home without their prior written consent.
The Commission explains the difference between family property rights and rights under homestead legislation in this way:
Although the non-owning spouses in these relationships have rights under family property legislation, homestead legislation provides a different type of protection – the right to remain in the home. The homestead provisions are proactive and provide protection without the non-owning spouse being required to take action. The family property legislation requires the non-owning spouse to either make an application to court or enter into a properly executed settlement agreement requiring the involvement of lawyers. [Footnotes omitted.]
The consultation paper is not a general review of Saskatchewan’s homestead legislation, but instead focuses on two issues:
The first is whether the consent provisions in the Homesteads Act should be extended to allow an attorney acting under a power of attorney to sign a consent in place of the non-owning spouse. [Currently, subsection 6(4) of the Act states, “A person acting under a power of attorney shall not sign the consent required pursuant to this section.”] This could be useful in situations where the non-owning spouse lacks the capacity to consent to a disposition of the homestead. Currently, if the non-owning spouse lacks capacity to consent, a court application must be made in order to dispose of the homestead.
The second issue is that the Homesteads Act does not explicitly address whether mines and minerals form part of the homestead. This has resulted in a lack of clarity as to whether the non-owning spouse’s consent is required where there is a disposition of mines and minerals.
The Commission wishes to receive responses to the following questions:
- Should an attorney acting under a power of attorney be able to consent in the place of the non-owning spouse to a disposition of the homestead? Why?
- If an attorney acting under a power of attorney is able to consent to a disposition of the homestead, should there be any additional conditions or restrictions placed on this exercise of power?
- Should mines and minerals be included in the homestead, such that the non-owning spouse must consent to their disposition?
The Commission welcomes comments from the public. For information on how to submit comments, please see below.
How to Respond
Responses may be sent no later than October 31, 2016:
By e-mail: [email protected]
By fax: (306) 966-5900
Law Reform Commission of Saskatchewan
University of Saskatchewan
Room 185, College of Law
15 Campus Drive
Saskatoon, SK S7N 5A6