Gifts In Contemplation of Marriage

Gifts In Contemplation of Marriage

Gifts In Contemplation of Marriage. P.S. v H.R. 2016 BCSC 2071 involves a claim for the return of a gift ( a $17,000  engagement ring) made in contemplation of marriage arising from a whirlwind relationship of three months that abruptly ended due to the plaintiff’s abusive behaviour.

During the brief relationship, the plaintiff was a wealthy man and also paid down the defendant’s mortgage in the amount of $85,000 in November without any prompting by the defendant .

The plaintiff alleged that the gifts were conditional gifts, in contemplation of marriage and should be repaid. The defendant said the gifts were absolute and not conditional and that she is entitled to retain them. The ring was purchased on October 30,2013 and they became engaged on Christmas day that same year.

The defendant later returned the ring to the jewellery store and exchanged it for several pieces of jewellery.

The Court held that the gifts were absolute and that the defendant may keep them as there were several reasons why the plaintiff paid the debts and gave her the ring, and that marriage was probably the least important of the several reasons.

The court found they were not firmly committed to marriage when the debts were paid off , not did the purchase of the ring in October signify a firm commitment to marry.

The Engagement Ring

[69]          In British Columbia, the law relating to engagement rings is reasonably well-settled.

In Hitchcox v. Harper, [1996] B.C.J. No. 1861, the court pondered competing lines of authority, one which treated engagement rings as absolute gifts not returnable upon a termination of the engagement, and another which treated the gift of an engagement ring as being conditional on marriage and therefore returnable upon the failure of the condition. The court followed the latter line of authority.

[70]          Hitchcox was followed in Sperling v. Grouwstra, 2004 BCSC 330 [Sperling] and Zimmerman v. Lazare, 2007 BCSC 626 [Zimmerman]. For this reason I consider the law on this point to be settled in this jurisdiction.

[71 ] Fault for the termination of the engagement does not enter into the analysis: Sperling, at para. 24, and Zimmerman, at para. 9. Parenthetically, I note that in other jurisdictions the issue has been dealt with by way of legislation, such that fault for a termination of an engagement is not relevant there either: Manitoba – Equality of Status Act, C.C.S.M., c. E130, s. 5; Ontario – Marriage Act, R.S.O. 1990, c. M.3, s. 33; and Alberta – Family Law Act, S.A. 2003, c. F-4.5, s. 102.

[72]          The general approach in British Columbia to the question of the return of engagement rings, which I have described above, is still subject to evidence of a contrary intention on the part of the donor. This is the real issue here because Ms. R. maintains that Mr. S. gave her the engagement ring as an absolute gift at their final meeting.

[73]          For his part, Mr. S. emphasizes that the onus is on the recipient to prove the transferor intended the transfer to be a gift and that the evidence of gift must be very clear, citing Bath v. Bath, 2002 NLCA 21 [Bath] and Veitch v. Rankin, [1997] O.J. No. 4642 (Ont. C.J.) [Veitch].

Gifts in Contemplations of Marriage

[87]        In Fediuk v. Gluck (1990), 26 R.F.L.(3d) 454 (Man. Q.B.), aff’d [1991] M.J. No. 354 [Fediuk], the court suggested that a transfer of property cannot be considered to have been made in contemplation of marriage unless the parties “have agreed on, or committed themselves to, marriage and where the transfer or gift can be said to have been made in that context”: Fediuk, at para. 19. However, I consider it unwise to rely on that fact alone and instead find it preferable to consider the degree to which the parties had committed to marry as being part of the context from which the donor’s intent may be ascertained or inferred.

[96]          Although Robinson v. Cumming has been cited in modern cases and in at least one modern textbook (J. Crossley Vaines, Personal Property, 4th ed. (London: Butterworths, 1967), which itself is cited in Lummer v. Frohlich, 2007 ABQB 295), I prefer to analyse the issue using more contemporary sources. Courting behaviour and relationships between men and women are vastly different today than in the days of Mrs. Robinson and Mr. Cumming, whose case came to court nearly 70 years prior to the publication of Jane Austen’s first novel, itself a study in quaint (and outdated) manners and customs.

[97]          One of those contemporary sources is Voglerv. Matzick (1988), 33 B.C.L.R. (2d) 82 (C.A.) at 84-85, where the court said:

I add this comment about gifts made “in contemplation of marriage”. Any gift may be made conditional, or subject to revocation. A term to that effect may be expressed or it may be implied. If it is implied, the factual matrix that gives rise to the implication must make the implication obvious, in accordance with the requirements of the officious bystander test. Where a household item is given by one prospective marriage partner to another, at a time when they are engaged but not sharing a household, the implication of a term that the gift was intended to be revocable if the marriage did not take place and the household never came into being, without any change of heart on the part of the donor, would be straightforward. As a form of shorthand, such a gift could be said to be “in contemplation of marriage”. But if the household is already in being, and if, as in this case, the donor may have had some motive for making the gift other than, or as well as, a prospective marriage, then the implication of a term that the gift is intended to be revocable if the marriage does not take place becomes much more problematical. A gift made “in contemplation of marriage” is not merely a gift between an engaged couple, with a marriage clearly in the offing. Nor is it a gift for use by both parties in a joint household. At the very least it requires that the gift would not have been made but for the impending marriage itself.

[Emphasis added.]

[98]          Although the passage just quoted is obiter dicta (because the case turned on relief granted by the trial judge that had not been claimed in the pleadings), the discussion of the law relating to gifts in contemplation of marriage is instructive and carries weight.

Importantly, the Court of Appeal noted that a motive or motives for making a gift other than, or as well as, a prospective marriage would make an implied term of revocability “problematical”. Indeed, that is the very situation presented in this case.