Can I Keep My Engagement Ring?

Upon the breakdown of a marriage, there are defined laws addressing how marital property is to be divided. But what happens if an engagement doesn’t result in marriage? And who gets to keep the engagement ring?

Each province addresses ring ownership upon the breakdown of an engagement differently. Theoretically, courts have grappled with the concept of gifting and whether an engagement ring should be considered an absolute or conditional gift. Courts have even imported contract law principles in their determination of ownership.

The relative lack of clarity with which this area has been approached by the courts and in the common law has led to some jurisdictions drafting legislation to deal with gifts exchanged before marriage.

For example, section 33 of Ontario’s Marriage Act has codified the common law principle that fault may not be considered where an engagement ring is given in contemplation of marriage or given as a “conditional gift”:

Where one person makes a gift 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 or not the failure or abandonment was caused by or was the fault of the donor shall not be considered in determining the right of the donor to recover the gift.

A simple application is: if no marriage follows, the ring must be returned to the donor. The justification being that return of the ring puts both parties in the position they were in before the engagement.

Other jurisdictions do not have similar legislation and remain bound by common law. Saskatchewan courts continue to follow precedents which retain historical foundations from 1917 (see Jacobs v Davis, [1917] 2 K.B. 532 at p. 533). Despite the old principle being adapted to apply to all relationships (not just those between a man and a woman), the basic idea is this:

If an individual who has received a ring refuses to fulfill the condition of the gift, they must return it. On the other hand, if the donor of the ring, without “recognized legal justification”, refuses to carry out their promise of marriage, they cannot demand the return of the engagement ring. It does not matter if the breaking of the promise turns out to be the ultimate advantage of both parties (D’Andrea v Schmidt, 2005 SKQB 201).

The legal effect of this common-law principle means that practically, if you break off an engagement, you are not entitled to the ring. Using the heteronormative example, boy proposes to girl, girl ends engagement, he gets to demand return of the ring. Alternatively, boy proposes to girl, boy ends engagement, she gets to keep the ring. In a way, the court has imported some level of fault (at least relating to the relationship ending) as being relevant in determining ring ownership.

As always in the law, there may be exceptions to the rule, but it is easy to see that certain inequities may exist where legislation is strictly adopted. Concepts of fairness may be compromised where a donor is allowed to demand the return of a ring, despite otherwise questionable actions or behaviours leading to the breakdown of an engagement. Alternatively, punishing an engagement ender by denying them the ability to retain an engagement ring might swing too far in the other direction, especially when considering the potential magnitude of cost.

A final option is that an engagement ring may be treated as a true and perfected gift. A judge may consider this the case where the donor says, “even if we never get married, this is a gift to you to remain yours”. This leaves no condition to be ‘fulfilled,’ and the recipient would likely retain ownership of the ring.

Despite this confusing and inconsistent area of the law, courts are apt to consider each case on its merits. We recommend seeking professional legal advice where there are questions related to engagement ring ownership.

This article is intended to provide legal information only, not legal advice.

For further information, please contact:

Tessa Wall
Student at Law
Direct: 306-933-1368
Email: [email protected]

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On January 3, 2023, the Development Appeals Board for Saskatoon allowed an appeal brought by Curtis Clavelle of Robertson Stromberg LLP on behalf of Arbutus Properties Ltd. to lift a holding symbol with respect to land Arbutus wished to develop in Saskatoon. The holding symbol prevented a parcel of Arbutus’ land in Rosewood to be developed into an affordable housing project. The City of Saskatoon had previously denied Arbutus’ application to lift the holding symbol to allow the project to proceed.

The decision is noteworthy as there are no reported decisions in Saskatchewan considering an appeal of a municipality’s denial to lift a holding symbol in a zoning bylaw. To that end, it may also be one of the first reported decisions in Canada on this subject.

A holding symbol prevents the land from being developed by preventing the municipality from issuing building or development permits with respect to the land. Only after the symbol has been lifted can the land be developed. The City had taken the position that the land was not adequately serviced to accommodate the addition of the affordable housing project. Arbutus’ evidence was that, not only was there adequate capacity at present but that capacity would be bolstered by the provision of new services well ahead of the completion of the apartment building.

The decision serves as a reminder to municipalities that the provisions of their zoning bylaws and official community plans must be interpreted plainly and reasonably.

For more information about this decision or municipal law, contact Curtis Clavelle.

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Join Robertson Stromberg in cheering on articling student Kane Fritzler on the new season of Survivor

Robertson Stromberg is delighted to share that our articling student Kane Fritzler has a new experience to add to his resume – Survivor Season 44 contestant!

Shortly after graduating from law school in spring 2022, Kane embarked on an entirely different type of adventure – flying to the Mamanuca Islands in Fiji to participate in and film the latest season of Survivor, which airs March 1, 2023.

Says Kane “I’d been a big fan of Survivor for as long as I can remember and craved adventure after years of studying – especially since I completed a large chunk of my degree during lockdown. I applied for the show, never thinking in a million years that I’d get chosen. But I was thrilled when I got the call, and the timing was perfect. I was able to film between graduation and starting my new career at Robertson Stromberg.”

Kane excelled in law school, receiving his Juris Doctor with Great Distinction from the University of Saskatchewan in 2022. He was a two-time recipient of the College of Law Academic Achievement Scholarship and was awarded the Law Society of Saskatchewan Bronze Medal for his year.

Says Kirsten Hnatuk, partner at Robertson Stromberg, “People might think reality TV is no big deal. But it takes determination, leadership, social skills, and a strategic mindset to participate in a TV show like Survivor. These are the types of skills we hired Kane for, and we’re excited to see how he utilizes them on the show!”

Although filming wrapped up in the summer of 2022, Kane can’t share how far he made it into the season. But Robertson Stromberg will be following along on the weekly adventure, supporting Kane with viewing parties and an office “Survivor Pool.” Staff will have the chance to place bets on who will win the season, with proceeds going to a charity of Kane’s choice.

Join Robertson Stromberg in cheering on Kane for Survivor Season 44, premiering March 1, 2023, on CBS and Global. Go Kane!

 

‘Survivor 44’ First Look Trailer

Image source: https://www.truedorktimes.com/survivor/cast/kane_fritzler

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M. Kim Anderson, K.C. receives CBA (Sask) Distinguished Service Award

We are pleased to announce that M. Kim Anderson, K.C., has been awarded the Canadian Bar Association Distinguished Service Award for 2023.

The Distinguished Service Award recognizes contributions and/or achievements by members of the Saskatchewan Branch of the Canadian Bar Association to the legal profession, the law, or development of the law. Significant law-related achievements for the benefit of residents of Saskatchewan are also considered.

Kim’s contributions to his community and profession are well known.  Read more about Kim here.

The award was presented at the Canadian Bar Association (Sask) Mid-Winter Meeting in Saskatoon on January 27, 2023.

Congratulations Kim!

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Binding Pre-Trial Conferences: What You Need to Know

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https://www.canlii.org/en/sk/skqb/doc/2022/2022skqb165/2022skqb165.html?autocompleteStr=2022%20SKQB%20165&autocompletePos=1

As background, a pre-trial conference is the final stage in a court proceeding before a trial of the matter, where a judge makes a final decision for the parties. 

The pre-trial conference is the parties’ last court-facilitated option to settle the matter prior to proceeding to a trial. A judge is present at pre-trials to hear the parties’ respective positions on the issues and offer insight to try and move the parties toward settlement. If the parties cannot reach an agreement at the pre-trial, they move on to a trial. The judge does not make a decision. 

However, in general civil and family law matters, binding pre-trials are now available under parts 4 and 15 of The King’s Bench Rules of Saskatchewan. The binding pre-trial functions similarly to a regular pre-trial, as described above, except that if the parties do not reach an agreement, they leave it to the judge to make a final decision on the matter. Rather than proceeding to a trial, the pre-trial judge makes the call. This can save parties ample time and money in avoiding the trial process while still being provided with a final decision from a judge. 

One important thing to bear in mind when considering a binding pre-trial is the nature of the issues in your case. A judge is limited in their ability to assess credibility since the parties do not provide sworn evidence to the Court as they would during a trial, where they provide verbal testimony under oath. Therefore, if there are conflicting stories between the parties, a binding pre-trial may not be a good fit for your case since the judge is limited in their ability to assess credibility to determine who is more believable.    

Another consideration is that your ability to appeal a decision resulting from a binding pre-trial is very limited. You must seek permission from the judge who made the decision in order to appeal it, which is not likely to be granted absent an obvious error. If you proceed to trial instead of a binding pre-trial, you would be able to appeal the decision much more easily. 

On this note, an appeal of a binding pre-trial decision cannot be brought under the guise that you are seeking clarification regarding the decision or that you think parts of the decision were wrongly decided. In Nemetchek, the husband asked the Court to “revisit” aspects of the decision reached at the conclusion of the binding pre-trial, essentially asking the judge to revise her decision in the husband’s favour.  

The Court concluded that writing to the Court to “clarify” parts of a decision was unacceptable. Further, while a judgment may be amended to correct clerical errors, accidental slips, or inadvertent omissions, the process cannot be used to reconsider a decision on the merits as the husband sought to do.  

In short, you cannot request a judge to reconsider a binding pre-trial decision simply because you are unhappy with the results.

The Court concluded that the application was unnecessary and without merit, awarding costs of $3,000 against the husband to be paid to the wife.

This article is intended to provide legal information only, not legal advice. 

For further information, please contact:

Curtis P. Clavelle
Direct: 306-933-1341
Email: [email protected]

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The Queen’s Platinum Jubilee Medal (Saskatchewan) celebrates the 70th anniversary of Her Majesty’s accession to the Throne as Queen of Canada. This award honours those who have made a positive impact on our province.

Jenn was recognized for her outstanding contributions to the community. Jenn is presently a director on the Remai Modern Foundation, whose purpose is to support the mission and activities of Remai Modern. She also sits as a trustee for the Canadian Museum of History and the Canadian War Museum in Ottawa. She is a Past President of the Persephone Theatre Board of Directors, and her work for that organization garnered her recognition as a Tourism Leader by Tourism Saskatoon. Jenn has also served on the board of TCU Place in Saskatoon and acted as chair.

Jenn was a long-time volunteer host with the community radio station in Saskatoon CFCR, 90.5 FM. She has also sat on the boards of MOSOFest, the Open Door Society, the Saskatoon Community Radio Society and the Saskatoon Branch of the Osteoporosis Society. Jenn also sat as a non-board volunteer on the governance committee of The Children’s Discovery Museum of Saskatchewan.

Jennifer is a past Senator of the University of Saskatchewan and a volunteer with the United Way.

She is involved in policy and board governance development for various political agencies and non-profits and has participated in several forums on democracy, the environment, and gender equity in support of that work.

RS congratulates Jenn on this significant achievement.

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