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    • Tag: Separation and Divorce

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    Breaking up Before the Wedding: Who gets the Ring?

    Many television shows and movies portray it, and many couples live it. When a couple separates, who really should keep the engagement ring?

    While some may argue that it is the recipient’s to keep (after all – it was a gift!), others take the position that the ring belongs to the giver (“If I bought it, it’s mine!”).

    Based on my own personal survey – conducted amongst family, friends and colleagues – it appears that there is no general consensus on this issue.

    Whatever your own personal answer may be, would it change depending upon who ended the relationship?

    A Nova Scotia court has taken a position on this issue and their opinion? If you broke off the engagement, the ring is not yours to keep.

    The “who gets the ring” issue went before the small claims court for one ex-couple in Nova Scotia. Several issues the ex’s were in disagreement over were also dealt with by adjudicator Gregg Knudsen.

    For Knudsen, it was of vital importance to determine who broke the engagement. Interestingly, Knuden was unconcerned with who ended the relationship.

    “It is the conditional aspect of the gift, the marriage or the intent to marry, which is the critical issue. The determination of the entitlement to the engagement ring is based upon who broke off the engagement and who didn’t.”

    This decision sparks some interesting questions. Under section 33 of the Ontario Marriage Act, the question of who caused the break-up is irrelevant in determining the right of the donor to recover the 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.

    When one looks to the case law in Ontario, a slightly unclear picture emerges.

    There is case law to support the proposition that engagement rings are conditional gifts that must be returned if the marriage does not take place. In those cases, the courts have looked at who broke off the engagement (similar to the practice taken by Knudsen). See for example McArthur v. Zaduk (2001), where because the donor broke off the engagement, the recipient kept the ring.

    Though other cases have held that the engagement ring is an unconditional gift that does not have to be returned, regardless of the fault of either party. See Rakus v. Piccolo, (1989).

    Yet another opinion on the issue comes from Newell v Allen (2012), where the judge ordered that the engagement ring be returned from the intended wife to the intended husband, regardless of who had broken the engagement.

    In either case, if you ever find yourself in this position as a donor, it’s important that you request the ring back when the engagement is broken. If not, you may be prevented from demanding it back later.

    Delay in demanding the return of the ring may also suggest that its character has changed from an engagement ring, conditional on marriage, to an unconditional gift: H. (A.) c. M. (M.) (1997).

    Of course, a break-up is always an uncontemplated occurrence for couples – especially those who are engaged and intend on spending the rest of their lives together. However, having a cohabitation or pre-marital agreement in place can help you to avoid such conflicts down the road, if they were ever to occur.

    If you need help drafting such an agreement, or if you are having trouble recovering damages or are being sued as a result of a broken engagement,  contact Devry Smith Frank LLP’s family law group today or call us directly at 416-449-1400 for more information.

     

    “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

    By Fauzan SiddiquiBlog, Family Law
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    New Fairness for Children of Unmarried Couples

    A new Constitutional challenge is currently unfolding at the Brampton courthouse. Robyn Coates is challenging the validity of Ontario’s Family Law Act on behalf of her 22-year-old son, Joshua Coates. Joshua has DiGeorge syndrome and suffers severe cognitive impairment.

    Robyn is arguing the law is discriminatory as it arbitrarily harms disabled children of non-married parents. Coates wants Joshua’s father, Wayne Winston, to continue paying child support payments for the rest of Wayne’s life.

    Watson, despite not seeing Joshua since he was six, has paid child support throughout the boy’s life. With a wife and two kids, and not enough money to even pay his own legal bills, Wayne thinks he has paid enough. Wayne believes Joshua should be covered by Ontario Disability Support Programs.

    Ontario Disability Support Programs assist people like Joshua, but his mother argues this is insufficient. Robyn believes Joshua requires day programs to live a more enriched life, which can cost between $3,500 – $17,000 per year.

    When a couple gets divorced, their disabled child is eligible to receive child support payments for the duration of their lives. However, if the couple is never married, Ontario’s Family Law Act states that child support only continues where a child is in full-time post-secondary education.

    Child support for divorced parents is governed by the federal Divorce Act. The Divorce Act allows disabled individuals to receive child support from their parents beyond their eighteenth birthdays. For non-married parents, child support payments are based on provincial Family Law Acts, which in Ontario, make clear that support will only continue to be paid in circumstances where a child is enrolled in full-time post-secondary education. Alberta has similar legislation to Ontario, while the rest of the provinces are aligned with the federal Divorce Act.

    What is at issue in this decision is not whether the law is bad or immoral, but whether it is unconstitutional, which requires the law to be discriminatory.

    Robyn Coates is a resource worker helping students with disabilities and is hoping to send a message with this action. Robyn has given quotes that indicate this case is about more than Joshua, but about all children with disabilities from unmarried parents, receiving care.  Robyn said: “Many women are raising these kids alone and they are living in poverty. And nobody seems to give a damn,” and “I don’t want any other mother to go through this.” However, even if the court is unpersuaded by Robyn’s argument, the media attention this case is generating might be sufficient to motivate the legislature to act.

    This challenge raises some important questions about family law legislation in Ontario. Should non-married parents be treated differently than married parents? Presently, the law dictates the act of creating a child only mandates 18 (plus any additional school years) years of legal responsibility, while the act of marriage (and divorce), makes the parents responsible (by law) to the child for their entire life.

    The court will have to assess if the is law trying to distinguish between divorced parents and non-married parents. If the law is not trying to achieve this purpose, it would be arbitrary for the law to in effect, treat disabled children of non-married parents differently than disabled children of divorced parents. Given Ontario’s Family Law Act does not distinguish between divorced and non-married parents in other capacities, it is likely that the law in question is arbitrary and therefore, discriminatory.

    If you need assistance navigating your family dispute, Devry Smith Frank LLP’s family law group can provide you with the guidance and support that you require.

     

    “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

    By Fauzan SiddiquiBlog, Family Law