North of 60 Blog

It’s Valentine’s Day. If you are thinking of proposing to a special someone, you may want to think twice.

While love is unconditional, the giving of an engagement ring is not.

Statistically, not every couple who gets engaged this Valentine’s Day is destined to walk down the aisle. Some people never get past the engagement. When that happens, who keeps the ring?

Traditionally, whoever broke off the engagement lost the right to retain the ring^[1]. However, with the legal recognition of no-fault separations, this traditional rule has fallen by the wayside.

The modern legal question is whether the engagement ring was a “true gift” or a “conditional gift” in contemplation of marriage.

Legally, a gift is a voluntary transfer of property owned by the gift giver (donor) which is given to the recipient (donee) for which no benefit is expected in return - like love. Unconditional love is a gift.

An engagement ring, however, is given in contemplation of marriage. The condition being that the marriage occurs and thus, the engagement ring becomes a “conditional gift”.

The recognition of an engagement ring as a conditional gift creates a presumption, absent an agreement to the contrary, that the engagement ring be returned if the parties never marry. However, when gift giving is common in a romantic relationship, or when the ring is given on a traditional gift giving holiday – like Valentine’s Day – the status of the engagement ring as a conditional gift may be about as clear as an I3 diamond.

For clarity, some jurisdictions such as Ontario^[2] and Alberta^[3] have codified this principle in their legislation. For example, section 33 of the Ontario Marriage Act allows gifts given in contemplation of marriage to be recoverable, regardless of whether the gift giver was at fault for the relationship breakdown. Nunavut and the Northwest Territories have no such provisions in their legislation^[4].

Therefore, Northerners must rely on court decisions from other jurisdictions for guidance. While the evidentiary record will determine the outcome in any court matter, there are two noteworthy emerging principles that can sway whether the engagement ring is returned or not:

1. The timelines of the request: How quickly upon the breakdown of the relationship did the gift giver request the return of the ring? In King v. Mann, the court determined that the time it takes to ask for the ring back can be indicative of whether the ring was a true gift or conditional on the promise of marriage^[5]. If the return is requested closer in time to the breakdown of the relationship, then the court is more likely to accept that the intention was for the ring to be a conditional gift since the breakdown triggered the request.
2. The date of proposal: Was the ring gifted on a day traditionally associated with gift-giving? In Lamacchia v. Carullo, the Court determined that the engagement ring was a “costly multi-gift ring”^[6]. Although the respondent had asked for the ring’s return less then 2 months after the parties separated, the court made it clear that timely demand was not the sole test. In this case, the evidence on how the engagement ring was presented was critical. The husband-to-be presented the engagement ring on Christmas and noted the cost of the ring, stating that the ring was a “Christmas, Mother’s Day, birthday, Valentine’s Day and everything ‘for a long time’ present”^[7]. The Judge found that this husband-to-be could have chosen to delay the event to ensure the ring was given as a gift in contemplation of marriage. However, by not doing so, coupled with qualifications that the ring was a gift in contemplation of other holidays, the ring lost its status as a conditional gift.

So, if you are thinking of proposing this Valentine’s Day maybe wait a week or two to ensure your conditional intentions are “flawless”.

^{[1] Iliopoulos v. Gettas 1981 CanLII 1703 (ON SC), 32 O.R. (2d) 636 (Co.Ct.) at para. 15.}

^{[2] Marriage Act, R.S.O. 1990 c. M-3 at s. 33.}

^{[3] Family Law Act, S.A. 2003 c. F-4.5 at s. 102.}

^{[4] Marriage Act, S.N.W.T. 2017 c.2; Marriage Act, R.S.N.W.T. (Nu) 1988 c. M-4.}

^{[5] 2020 ONSC 108 [King].}

^{[6] 2022 ONSC 687 [Lamacchia].}

^{[7] Ibid at para. 58.}