Dower Rights in Ontario

Dower rights in Ontario have come and gone.

Of course, they came with the “common law” but they went when the Family Law Reform Act was enacted on 31 March 1978.

What were dower rights?

Dower rights consisted of two separate and distinct rights:

  1. The right to live in the main house on the property commencing on the date of death of the husband and continuing until the wife was deceased,
  2. One third of the profits from the late husband’s lands until she died.

So, in essence, a place to live and some income.

There were many ways to get around dower rights. One way was that the husband would take title as “John Smith To USES”. This is in effect, “in trust” for himself. If he did that, then there were no dower rights.

There were other ways to avoid dower, including setting aside the marriage in the first place or setting out a matrimonial offence.

Dower arose in the first place due to the fact that in medieval times, the eldest son would automatically inherit the property. Now, while we might expect the eldest son to look after his mother, the rule came into place, because very often this was not the case. The wife might be the second or third wife. The eldest son’s own mother may have died of disease or died in childbirth. So, this rule was needed.

Barring dower rights was commonplace with respect to conveyancing, and naturally it covered much more than just the matrimonial home. It included every property owned by the husband in his own right, that is, registered in his own name alone (excepting “to uses” and “in trust”).

Modern rules related to the division of property were set out in the Family Law Reform Act, 1978. At that point, dower rights were abolished for all of those whose husbands were still alive. If the rights were actually “in play”, then they were “grandfathered”. That actually seems like the wrong term in this context, might I say “grandmothered”, or continued.

70. (I) The common law right of a widow to dower is hereby abolished.

(4) Subsections 1, 2 and 3 do not apply in respect of a right to dower that has vested before subsection; 1 and 2 come into force.

The current Act was the Family Law Act,1986 , which was consolidated in the 1990 Revised Statutes of Ontario, and again that continued with the new rights.

Very often, you might here the expression “the inchoate right to dower”, that simply meant that the rights were there, but the husband was still alive. When he passed away the dower rights were “vested”.

At this point, any vested dower rights have probably expired since they were abolished in 1978, 44 years ago.

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com

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