10 Dispensing with Consent Application to dispense with consent
married person's homestead and who cannot obtain the consent of
the married person's spouse
(a) when the married person an d the married person's spouse
are living apart,
(b) when the spouse has not sin ce the marriage lived in Alberta,
(c) when the whereabouts of the spouse is unknown,
(d) when the married person has 2 or more homesteads,
(e) when the spouse has execu ted an agreement in writing and
for valuable consideration to release the claim of the spouse
to dower pursuant to section 9, or
(f) when the spouse is a menta lly incompetent person or a
person of unsound mind for whom
(i) a trustee under the Adult Guardianship and Trusteeship
Act does not have authority to make a disposition of the
homestead, and
RSA 2000
(ii) a certificate of incapacity is not in effect under the
Public Trustee Act,
may apply to the Court for an order dispensing with the consent of
the spouse to the proposed disposition.
(2) When the Court is satisfied
(a) that the spouse has not si nce the marriage lived in Alberta,
or
(b) that the whereabouts of the spouse is unknown,
it may dispense with the giving of notice of the application for the
order or give any other direction relating to the service of notice
that to it appears proper.
(3) When the spouse is a mentally incompetent person or a person
of unsound mind for whom there is no trustee under the Adult
Guardianship and Trusteeship Act and for whom a certificate of
incapacity is not in effect under the Public Trustee Act, notice of an
application to dispense with the consent of the spouse shall be
served in the manner provided by the Alberta Rules of Court for the
service of statements of claim on such persons.
(4) On the application, the Court may hear any evidence and
consider any matters that in its opinion relate to the application,
and without restricting the generality of the foregoing, it may
consider
(a) in the case of spouses who are living apart, the
circumstances of the separation and the financial resources
of the parties and their mode of life,
(b) in the case of a married per son with 2 or more homesteads,
the homestead the spouse of the married person would
prefer the married person to retain, and
(c) in the case of a spouse who has executed in writing and for
valuable consideration an agreement to release the claim of
the spouse to dower, whether the other provisions of the
agreement have been performed and whether the
consideration has been paid.
(5) The Court may by order dispense with the consent of the
spouse if in the opinion of the Court it appears fair and reasonable
under the circumstances to do so.
(6) The Court may make the order without imposing any
conditions or may make the order on any terms and conditions
RSA 2000
relating to notice, payment into court or otherwise as the Court in
the circumstances thinks proper.
(7) On the order being made and filed, together with the
disposition, with the Registrar of Land Titles, the Registrar on
payment of the proper fees shall register the disposition in the same
manner as if the spouse of the married person had consented to it.
RSA 2000 cD-15 s10;2008 cA-4.2 s129;2009 c53 s50;
2014 c8 s11