Introduction

The Law Reform Commission of Saskatchewan is incorporated by an Act of the Saskatchewan Legislature. Commissioners are appointed by Order in Council. The Commission’s recommendations are independent, and are submitted to the Minister of Justice and Attorney General of Saskatchewan for consideration. 

Projects are initiated by the Commission in response to suggestions from the public and the legal community, or at the request of the Minister of Justice and Attorney General. After preliminary research, the Commission usually issues background or consultation paper to facilitate consultation. Tentative Proposals may be issues if the legal issues involved in a project are complex. Upon completion of a project, the Commission’s recommendations are formally submitted to the Minister of Justice and Attorney General as final proposals.

The Homesteads Act, 1989 (Homesteads Act), protects spouses who do not own their homes (the non-owning spouse) against the sale, mortgaging or other form of disposition of the home. The legislation does this by requiring the non-owning spouse to sign a consent and be examined separately from the owning spouse before the home can be disposed of.

This consultation is not intended to be an exhaustive review of the Homesteads Act, but instead focusses on two specific issues.

The Homesteads Act, 1989 (Homesteads Act), protects spouses who do not own their homes (the non-owning spouse) against the sale, mortgaging or other form of disposition of the home. The legislation does this by requiring the non-owning spouse to sign a consent and be examined separately from the owning spouse before the home can be disposed of.

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. 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. In addition to recommending clarification, this consultation paper considers whether mines and minerals should be included in or excluded from the protections afforded under the legislation.

This survey will provide a summary of the discussion on each issue contained in the consultation paper and then pose the questions as they are stated in the consultation paper. In order to fully understand the questions being posed in this survey, you may wish to read the consultation paper prior to completing this survey.

Your comments and input are welcomed and appreciated.

Please complete this survey by October 31, 2016.


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* 1. A Saskatchewan lawyer has raised for discussion the issue of whether an attorney under a power of attorney should be able to sign a consent under the Homesteads Act. Currently, subsection 6(4) states, “A person acting under a power of attorney shall not sign the consent required pursuant to this section.” 

An attorney is a person who, through an appointment pursuant to The Powers of Attorney Act, 2002, (Powers of Attorney Act) has been given specific power to act in the place of an individual. A power of attorney can be limited or broad. It can be used for the sake of convenience, for instance, if an individual is outside of the country and wanted to sell his or her house. A power of attorney is also often used where an individual is entering a phase of life where he or she is no longer able to fully understand and make decisions.

The primary rationale for changing the Homesteads Act to allow an attorney to sign a consent would be to address situations where an adult no longer has the legal capacity to sign a consent but would benefit from the disposition of the homestead. For instance, an older adult may need a greater level of care than can be received in his or her home or may benefit from moving to a more suitable residence such as a senior’s residence or to a smaller home. The inability of the non-owning spouse to sign a consent can tie up the property and the major financial resource that it represents.  Presently, an interested person would need to apply for a court order under section 11 of the Homesteads Act to dispense with the consent requirement.

The provisions of the Powers of Attorney Act allow an individual to grant an attorney authority over all of their property and financial affairs, which would, but for subsection 6(4) of the Homesteads Act, include the authority to consent to a disposition of the homestead. The Homesteads Act does not similarly restrict the ability of a property guardian appointed under The Adult Guardianship and Co-Decision Making Act, SS 2000 c A-5.3, from signing a consent

The benefits of allowing an attorney to sign a consent need to be weighed against the potential for misuse and weakening of the consent provision.

Should an attorney be able to sign a consent to a disposition of the homestead?

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* 2. If the Act is amended so that an attorney is able to sign a consent to a disposition of the homestead, there are several protections that could be put in place to protect the interests of the non-owning spouse.

The first protection that could be added would be to prohibit the owning spouse from acting as the non-owning spouse’s attorney in respect to a consent to a disposition of the homestead. This is logical, as the legislation aims to provide protection to the non-owning spouse against the disposition of the property by the owning spouse. However, this type of restriction would potentially restrict the effect of any provision allowing an attorney to consent to a disposition of the homestead, as spouses are frequently appointed as each other’s attorneys. Further, if the attorney for the non-owning spouse is one of his or her children, it is possible that the owning spouse will have some degree of influence over the attorney’s decision.

Should the owning spouse be prohibited from acting as the non-owning spouse's attorney in respect to a consent to a disposition of the homestead?

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* 3. A further protection could be added at the time of the attorney’s appointment to ensure the non-owning spouse is fully aware of the power being provided to the attorney. The following complications may arise with such a requirement: it may be difficult to predict beforehand that the power of attorney will be used specifically for this purpose; it could make all powers of attorney already in place unusable to provide consent; and it could add further complication to the process of appointing an  attorney.  

Manitoba requires an acknowledgement at the time of execution of the power of attorney in order for the attorney to be able to consent on behalf of the non-owning spouse. This requirement focuses on two things: (i) protecting the non-owning spouse against the compulsion of the owning spouse; and (ii) ensuring that the non-owning spouse is aware of what they are agreeing to. This power of attorney cannot be signed when the owning spouse is present.

A requirement like this in Saskatchewan where the attorney has the ability to consent to release homestead rights could help to ensure that the non-owning spouse is freely consenting, but could also limit the usefulness of the section.

If an attorney is able to sign a consent to a disposition of a homestead, should there be additional requirements when appointing the attorney to ensure the non-owning spouse is aware they are authorizing the attorney to consent to a disposition of the homestead?

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* 4. If there are to be specific requirements in Saskatchewan authorizing an attorney to sign a consent,  an issue to consider would be whether to dispense with an examination of the attorney. Presently, when the non-owning spouse consents to a disposition, he or she signs the consent form provided in the regulations which declares that he or she is relinquishing all homestead rights necessary for the specific disposition. The non-owning spouse must be examined by a judge, justice of the peace, lawyer or notary public separate and apart from the owning spouse. The examiner must then sign an acknowledgment that the non-owning spouse understands the homestead rights being waived and is signing the consent of his or her “own free will and without any compulsion on the part of the owning spouse.”

The knowledge of the individual appointed as the attorney needs to be considered. Many attorneys will likely be a child or trusted friend of the non-owning spouse. In this case, the person may not have a particular knowledge of what homestead rights are and what is being waived. If the attorney has a close relationship with the non-owning spouse, he or she could also have a close relationship with the owning spouse. In that case, having an explanation of homestead rights apart from the owning spouse may prove useful to bring about the best decision for the non-owning spouse.

A provision that requires examination of the attorney could be useful. For efficiency in the process, certain classes of individuals who provide professional power of attorney services who have specific knowledge of what is being consented to could be exempted from such examination. An examination at this stage could allow for powers of attorney already in place and powers of attorney prepared outside of Saskatchewan to be used as long as the owning spouse was not the attorney.

If an attorney is able to sign a consent to a disposition of a homestead, should there be additional requirements at the time of the execution of the disposition of the homestead by the attorney, to ensure the attorney is providing informed consent to the disposition of the homestead?

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* 5. Are there any other conditions or limitations that should be imposed on the ability of an attorney to consent to a disposition of the homestead?

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* 6. The second area covered in this consultation paper is the status of mines and minerals under the Homesteads Act. The definition of homestead in subsection 2(c) of the Homesteads Act does not specifically refer to mines and minerals, however, as a matter of practice, consents to dispositions of mines and minerals under the homestead are sought from non-owning spouses. It appears reasonably certain that mines and minerals do currently form part of the homestead under the Homesteads Act. 

Whether mines and minerals should be included or excluded from the homestead largely depends on defining the contemporary aims of the Homesteads Act: should it be used to protect the family home as a residence, or should it be used to also protect the financial value of the home and the land surrounding it? The practical impacts of any potential exclusion also need to be considered. 

The purpose of homestead legislation has been described by the courts as “to protect the home and to prevent the husband from disposing of it without the consent of the wife freely and voluntarily given.” The purpose of the Homesteads Act has also been discussed various times in the legislature. In 1989, during the second reading of the Homesteads Act, Mr. Andrews stated:

The Homesteads Act has a great historical significance in the protection of women’s rights in our province since 1915. This legislation has prevented a husband from selling or mortgaging the family home or the family quarter section without the wife’s knowledge and consent. While the position of women in society has improved dramatically since 1915, the protections of this Act are still important. This Bill that is before the House today makes one major and necessary improvement to the Act, Mr. Speaker. It extends the homestead protection to husbands. Under the proposed Bill, if the family home is owned by one spouse, the consent of the other spouse will be required before the home can be sold, mortgaged, or otherwise dealt with.

It is clear from the foregoing that the original purpose of homestead legislation on the prairies was to protect the family home as a residence for the non-owning spouse.

What needs to be determined is whether the Homesteads Act is still primarily in existence to ensure that the non-owning spouse can stay in his or her home, or, whether it is intended to protect the financial value of the home and the land it is situated on, including any business taking place there.

While this project is not considering whether the Homesteads Act, as a whole, is still necessary, it may be worth noting that several other Canadian provinces no longer have homestead or dower legislation, and instead deal with the protection of the family home under family property legislation. This may suggest that it would be desirable to ensure the Homesteads Act’s application in Saskatchewan is limited to protection of the family home as a residence. In addition, removing mines and minerals from the homestead under the Homesteads Act would simplify mineral interest-related transactions.

Should the Homesteads Act be amended to specifically include or exclude mines and minerals?

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