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Nadine Russell discusses the precedent and possibilities of the unfortunate circumstance of an ended engagement and what happens to the ring.Once upon a time, a man knelt down on one knee, presented a shiny diamond ring to his girlfriend and uttered the famous words “Will you marry me?”  With a smile from ear to ear, a resounding “Yes!” from his (now) bride-to-be sealed the deal.  

We all know that not every story has a happy ending and sometimes instead of a toast to the bride and groom, an engagement ends in broken hearts and lost deposits.  According to DeBeers, an engagement ring should cost approximately three months' salary – for some, this is a large enough amount of money to warrant a fight over who is entitled to keep the ring when the relationship breaks down.

When a couple becomes engaged, what they are really doing is entering into a contract or an agreement to marry.  Historically, if one person broke off an engagement, the other party could bring an action for “breach of a promise to marry”.  This could potentially lead to someone going ahead with a wedding against his or her will simply to avoid being sued, which is probably not a good thing!  This cause of action was abolished in Ontario many years ago by s. 32 of the Marriage Act.

Section 33 of the Marriage Act goes on to specify that where there is a gift made in contemplation of a marriage that fails to take place, “the question of whether or not the failure was caused by the donor shall not be considered in determining the right of the donor to recover the gift.”  This section tells us that whether or not the person who gave the ring was at fault for the break-up shouldn’t determine whether they can recover the gift, but unfortunately it does not give judges a clear answer on how to decide who gets to keep the ring at the end of the day.  Some judges have preferred the view that an engagement ring is just a “gift” like any other and it cannot be recovered.  Most judges, however, have chosen to consider who was ultimately responsible for ending the engagement, with the “innocent party” ending up with the ring.  While this is the approach taken by most judges, the outcome of each individual case will still depend on the specific facts.

In Mihichuk  v Delledonne[1], a recent small claims court case out of Woodstock, Ontario,  Ms. Delladonne broke off the engagement after a heated battle involving yelling, insults to each other's families and shouting obscenities.  In the end, the court found more fault in Mr. Mihichuk's behaviour who in the midst of argument pushed Ms. Delladonne, threw her clothes onto the driveway and trampled on them.  Although it was Ms. Delladonne who actually called off the wedding the court found that Mr. Mihichuk's conduct was the cause of the termination of the relationship.  Ms. Mihichuk was entitled to keep the ring.

McArthur v Zaduk [2]is a case involving infidelity, with a somewhat surprising twist.  Both parties acknowledged that they were unfaithful in the beginning of the relationship.  According to Mr. Zaduk, the couple had a conversation in which they agreed they would be faithful to one another from that point forward.  Mr. Zaduk broke off the engagement after discovering that Ms. McArthur had once again been unfaithful.  McArthur's evidence at trial was that the couple had an “open relationship” and that Mr. Zaduk was well aware of her affairs.  The court examined whether the engagement was accompanied by a “firm agreement to be sexually faithful” and found that there was no such agreement, at least according to Ms. McArthur.  Since fidelity was not part of the contract and Mr. Zaduk was the one who broke off the engagement, he was not entitled to recover the ring.

In summary, although s. 33 of the Marriage Act directs the court not to consider whether the donor was at fault for the failed engagement, the courts routinely focus on the circumstances of the break-up in deciding who should keep the ring. 

A diamond may be forever but sometimes a relationship is not, so be sure to spend your three months' salary wisely.  It may be another “deposit” that is non-refundable at the end of the day.
If you are having a dispute over property division, support issues or any issue related to family law, please contact Nadine Russell at [email protected] for a consultation.


[1] Mihichuk v. Delledonne, [2012] O.J. No. 1269
[2] McArthur v. Zaduk, 2001 CanLII 28143 (ON SC)

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