Marriage

• Jurisdiction: Canada
• Author: Julien D. Payne,Marilyn A. Payne
• Date: 25 July 2022

14

Chapter 2

Marriage

A. ENGAGEMENTS

Engagements are a common prelude to marriage. At the time when the par-

ties agree to marry at some future date, they oen exchange gis as a token of

their commitment. e most common gi, of course, is the engagement ring

that is traditionally given by the prospective bridegroom to his prospective

bride. Not every engagement, however, results in marriage. e parties may

mutually agree to abandon their plans to marry. Or, either of them may uni-

laterally break of‌f the engagement. At one time, it was possible for the jilted

lover to sue the other party for breach of promise of marriage. ese actions

have now been abolished in Australia, England, New Zealand, Scotland, and

in several American states and Canadian provinces, including British Colum-

bia, Manitoba, and Ontario.1 Most people would agree that it is beer for an

engagement to be broken than for a marriage to be entered into aer the par-

ties have second thoughts.

B. PROPERTY DISPUTES ON TERMINATION OF

ENGAGEMENT

Statutory abolition of actions for breach of promise of marriage does not inter-

fere with the remedies legally available to resolve property or other disputes

that arise on the termination of an engagement. For example, an engaged

1 See Patel v Patel, 2016 ABQB 64; Dupuis v Austin (1998), 168 DLR (4th) 215 (NBQB)

(action negated by s 15 of the Canadian Charter of Rights and Freedoms).

Chapter 2: Marriage 15

couple may have acquired property for their future married life together,

either from their individual or joint ef‌forts. In these circumstances, if the

engagement is subsequently broken of‌f, either party may invoke established

legal doctrines to determine their interest in the property. If it was a product

of their joint f‌inancial contributions, whether direct or indirect, the value of

the property will be shared between them. If it was acquired solely through

the ef‌forts of one of the parties, that person will be exclusively entitled to the

property. e reason for terminating the engagement would be irrelevant to

any such claims. Dif‌ferent principles apply to gis made in contemplation of

marriage, including the engagement ring. In the absence of express statutory

provision to the contrary, the general common law rule is that the engagement

ring is forfeited by the party who refused to honour the engagement.2 If the

woman breaks of‌f the engagement, she must return the ring. On the other

hand, if the man breaks of‌f the engagement, he cannot demand the return of

the engagement ring. In Ontario, the action for breach of promise of marriage

was abolished in 1977, but section 33 of the Ontario Marriage Act3 expressly

provides for the recovery of gis made in contemplation of marriage. Pursu-

ant to this statutory provision, where one person gives a gi to another “in

contemplation of or conditional upon” their marriage to each other and the

marriage fails to take place or is abandoned, the question of whether the

failure or abandonment was caused by the fault of the donor is irrelevant to

a determination of the right of the donor to recover the gi. Whether a gi

has been made in contemplation of or conditional upon marriage is a ques-

tion of fact to be determined in light of the aendant circumstances.4 Birth-

day presents, for example, would not be regarded as conditional gis. On the

other hand, an engagement ring could properly be regarded as a pledge made

in contemplation of marriage and should, therefore, be returned under the

Ontario statutory provision if the intended marriage did not take place.5

2 Seiler v Funk (1914), 32 OLR 99 (SC (AD)); Jacobs v Davis, [1917] 2 KB 532; McArthur

v Zaduk (2001), 21 RFL (5th) 142 (Ont Sup Ct); Konopka v O’Meara, 2011 ONSC 3229;

Cohen v Sellar, [1926] 1 KB 536; Robinson v Cumming (1742), 26 ER 646; see also Zimmer-

man v Lazare, 2007 BCSC 626.

3 RSO 1990, c M.3; see also Family Law Act, SA 2003, c F-4.5, s 102; Equality of Status Act,

CCSM, c E130, s 5.

4 See King v Mann, 2020 ONSC 108, discussed in Zalev & Franks, “This Week in Family

Law” (23 March 2020), Thomson Reuters; and see Hood v Skauge, 2015 ABQB 476; see

also PS v HR, 2016 BCSC 2071; Bath v Bath, 2002 NLCA 21.

5 See Mastromatteo v Dayball, [2011] OJ No 1600 (Sup Ct); Newell v Allen, 2012 ONSC

6681. But see contra: Marcon v Cicchelli (1993), 47 RFL (3d) 403 (Ont Gen Div); for criti-

cism of this conclusion, see JG McLeod, “Marcon v Cicchelli,” Case Comment (1993) 47

RFL (3d) 411 at 412.