Claims by Common Law Spouse

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Who Gets The Engagement Ring?

December 13, 2010 by Charles Wagner

Marsha’s met Marc only 3 months ago.  When she agreed to marry him she thought he was a wealthy entrepreneur.  Instead, she found out that Marc only owned a small store and was barely making ends meet.  When Marsha discovered her mistake she immediately started to date other men.

After Marsha agreed to marry him, Marc gave her a $20,000.00 diamond engagement ring.  Soon after Marc caught Marsha on a date with another man.  He demanded that she give back the engagement ring.  She refused.  In her mind the engagement ring was a gift.  Marc sued. Who do you think should get the ring?   Let’s see what the courts say.

In reviewing the case law, it seems that the most important factor for the courts was who broke off the engagement (FN1). Applying this reasoning to our story, if the courts believed that Marsha’s dating other men constituted a breaking off of the engagement they would order her to give back the ring.  In some cases the courts did not consider infidelity by the woman to constitute a breaking off of an engagement (FN2).  If that reasoning were applied here and the court felt it was Marc who ended the engagement then the court would allow Marsha to keep the ring. Academics criticized these decisions because, in their view, an engagement ring was a gift conditional on a marriage that did not take place and should be returned regardless of fault.  That reading of the law is more consistent with section 33 of the Marriage Act which provides “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”(FN3).

Whatever the husband’s rights may be to get the ring back the courts have also denied him the return of the engagement ring if he fails to ask for it because the delay seems to mean the ring changed from a gift conditional on marriage to an absolute gift.

In Okahai v.  Sharify (FN4) a judge ruled that the woman had to return the engagement ring This case and other like it (FN5) were decided on the assumption that engagement rings were given in contemplation of marriage.  Under these circumstances, there is an implied condition attached to the ring that the woman would marry him.  The ring has the character of a pledge or something to bring the bargain or contract to marry and was  given on the understanding, or the implied term, that a party who breaks the contract must return it.  Since the women broke off the marriage she had to return the ring.

This short review of the case law should not be taken as legal advice. Based on my experience in dealing with these cases, they often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.
 

FN1.  See  Marcon v. Cicchelli ( 1993), 47 R.F.L. ( 3d) 403 (Ont. Gen. Div.); Iliopoulos v. Gettas (1981), 32 O.R. (2d) 636 (Ont. Co. Ct.).

FN2.   See paragraph 61 of McArthur v. Zaduk 2001 CarswellOnt 2117, 21 R.F.L. (5th) 142, 106 A.C.W.S. (3d) 380

FN3.  In an annotation on Marcon v. Cicchelli the late James McLeod who was Counsel, at Mamo & Associates, London, Ontario, and Professor of Law at the Univrsity of Western Ontario expressed the opinion that the Divisional Court of Ontario was wrong.  In his view a gift is either conditional or absolute. If the gift is conditional and the condition is not met, then there is no gift and the property should be returned to the donor.  He based his view on Hough v. Champagne (1991), 35 R.F.L. (3d) 27, 42 E.T.R. 252 ( Ont. Gen. Div.).and s. 33 of the Marriage Act.

FN4.   Okahai v.  Sharify [2004] O.J. No. 4186 ( Ontario SCJ).

FN5.   Veitch (Trustee of) v. Rankin (1997), 41 O.T.C. 14, [1997] O.J. No. 4642 (Gen. Div.); Marcon v. Cicchelli (1993), 47 R.F.L. (3d) 403 at 407-408 (Gen. Div.): Hough V. Champagne [1991] O.J. No. 1322; 42 E.T.R. 252 (Gen. Div.); Iliopoulous V. Gettas (1981), 32 O.R. (2d) 636 At 639 (Co. Ct.); Seiler V. Funk [1914] O.J. No. 115;  32 O.L.R. 99 ( Ont. Ca); D’andrea v. Schmidt [2005] S.J. No. 290; 2005 Skqb 201; Q.B.G. No. 2166 Of 2002 J.C.R. (Saskatchewan Court Of Queen’s Bench ).

Do Mistresses Have a Right to Inheritance?

October 21, 2010 by Charles Wagner

Can you imagine burying a spouse and then being sued for support by his mistress? For those who believe in primacy on marriage and that marriage obligates its partners to fidelity, the idea of rewarding a mistress to a portion of the family’s an inheritance is unjust. Others argue that financial obligations should flow from the intensity and duration of life partner relationships regardless of the partners’ marital status. What do the courts think?

In Nowell v. Town Estate (http://bit.ly/nowell ) the deceased had a 24 year extramarital affair. During the week he lived with his wife, but on the weekends this man spent time with his mistress, gave her gifts worth about $125,000 and promised to support her. The mistress contributed to the man’s work as an artist without compensation. Left nothing in the will she sued the estate. Do you think she deserved any money? The Ontario Court of Appeal did.

The judges recognized that a 24 year relationship was more than casual and for the last 13 years it was quasi-spousal. The judges felt the mistress should be fully compensated because the estate was unjustly enriched. Mr. Town accepted his mistress’ help, did not pay for it, and he benefited financially. The court was influenced by the fact that the mistress made Mr. Town the focal point of her life and that through the years Mr. Town assured his mistress that he would look after her. While this did not create a legal relationship it proved the nature of the relationship. The court still awarded her $300,000.

In Mahoney v. King 1998 CarswellOnt 2348 a mistress successfully sued a married man for support because the court found that she was a common law spouse. Arguably, a mistress suing her paramour’s estate could use this case as a precedent. As a “spouse” the mistress would qualify as a dependant and would be entitled to support under the Succession Law Reform Act, R.S.O. 1990, c. S.26 if her paramour did not provide her with adequate support. There are those like the late law professor James G. McLeod who disagreed with this decision. He took exception to the idea that a woman who had an affair with a married man who lived with his wife may be a “spouse”. While Professor McLeod understood the argument of making an unjustly enriched estate compensate a mistress like in Nowell v. Town Estate he felt that to suggest that a mistress was a spouse for support purposes takes away whatever meaning is in the word “spouse”. 

The different views of a mistress entitlement to support under the law should tell you that this issue is not a simple one. My short review of these cases should not be taken as legal advice. Based on my experience in dealing with these cases they often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.