D'ANDREAV. SCHMIDT 2005 SASKATCHEWAN QUEEN'S BENCH
The Defendant applies for an order striking out part of the claim of her former fiance, the
Plaintiff D’Andrea. He is suing her for return of an engagement ring, but she says that his claim
is rooted in an anachronistic law that discriminates against women.
The Plaintiff, D’Andrea and the Defendant Schmidt entered into a verbal contract of marriage.
The Plaintiff states that he delivered to the Defendant an engagement ring, and the Defendant
promised to marry him. The Defendant breached the contract by terminating the relationship and
refusing to follow through with marriage to the Plaintiff. He demanded the return of the
engagement ring from the Defendant and she refused. The Plaintiff claims against the Defendant
the return of the engagement ring.
Ms. Schmidt takes the position that the common law cause of action of breach of promise of
marriage remains the foundation of those parts of the claim relating to the engagement ring, even
after the amendment. The cause of action of breach of promise of marriage, says Ms. Schmidt:
(a) is fundamentally discriminatory on the basis of sex;
(b) has the practical effect of perpetuating discrimination on the basis of sex;
(c) has discriminatory origin, underlying policy considerations and remedies;
(d) perpetuates obsolete stereotypical sexist thinking;
(e) is deeply rooted in historical sexism, which is inconsistent with modern gender-neutral
legislation and the equality provisions of the Charter;
(f) includes a differential application of remedies on the basis of sex, which is a substantive
discrimination because it denies the parties equal benefit of the law and perpetuates
discriminatory thinking regarding engagement and marriage on the basis of sex;
(g) is anachronistic; and
(h) is offensive to human dignity and contrary to the commitment to equality in our modern
In taking this position, Ms. Schmidt refers to Dupuis v.Austin (1998). In that case the court
addressed the common law cause of action of breach of promise of marriage and said at pages
The rationale for allowing women to sue for general damages for injured feelings in a claim
for breach of promise of marriage has been described as follows:
In the case of breach of promise of marriage, the intended bride has been deprived of
that conjugal bliss that was the supposed object of the contract ... To the woman, more
especially, it is all important that the relation shall not be put an end to. Independently
of the mental pain occasioned by the abrupt termination of such an engagement, the
fact of its existence, if followed by such a termination, must necessarily operate to her
serious disadvantage. During its continuance others will naturally be deterred from
approaching her with matrimonial intentions; nor could she admit of such approaches
if made; while the breaking off of the engagement is too apt to cast a slur on one who
was thus treated. But our modern law is gender-neutral.An action for breach of
promise is not gender-neutral when it is based on obsolete stereotypical sexist thinking that "the intended bride has been deprived of the conjugal bliss" and that "to the
woman, more especially, it is all important that the relation shall not be put an end to".
To allow such an action would perpetuate such archaic sexist notions. In my view that
would offend the equality provisions of section 15 of the Canadian Charter of Rights
and Freedoms. In my opinion the old common law action for general damages for
breach of promise of marriage is inconsistent with modern gender-neutral legislation
and inconsistent with the equality provision of the Charter. It is also inconsistent with
the temporary nature of many modern marriages. For these reasons in my view a claim
for general damages for breach of promise of marriage is now obsolete.
An action for breach of promise of marriage, she says, is an anachronism. The intrusion of the
law of contract into a relationship between two people is out of place by today's standards and
thus is contrary to public policy. Ms. Schmidt argues that the giving of an engagement ring is a
gift of love given unconditionally, not a contract. If the courts are involved in the disposition of
an engagement ring, she says, then the courts are involved in matters of love, where they do not
Further, she says, the reality is that men give women engagement rings. This reality is rooted in
an historical sexist approach, one in which women were chattels to be bartered.
Ms. Schmidt acknowledges that the law as it is described in decisions from other jurisdictions
(discussed below) establishes the cause of action relied on by Mr. D'Andrea. Her argument,
however, is that that law is outdated and it should not be enforced in Saskatchewan. It is no
longer relevant or right.
The two foundations of Ms. Schmidt's argument are that the claim relating to the engagement
(a) based on the common law cause of action of breach of promise of marriage; and
(b) therefore based on a cause of action that discriminates against women.
I have come to the conclusion that the claim relating to the engagement ring is:
(a) not based on the common law cause of action of breach of promise of marriage; and
(b) not based on a cause of action that discriminates against women.
Ms. Schmidt argues that the courts have no business being involved in matters of love. The
reality is that the courts already are involved in matters of love or, perhaps more accurately, in
the practical matters surrounding and following the departure of love. I refer to the involvement
of the courts in matters such as divorce, custody, access and family property. In its basic nature
this case is no different from cases in those areas. Its history involves two people professing love
for each other, but they have ended up in court because there are some things that love cannot be
relied on to sort out.
Ms. Schmidt says that Mr. D'Andrea's claim is based on old, outdated law. Mr. D'Andrea
disagrees, citing recent cases in support of his claim for return of the engagement ring.
In Iliopoulous v. Gettas (1981) the court reviewed the law relating to the giving of an
engagement ring in contemplation of marriage:
The origins of the engagement ring and the engagement in our law was outlined in Cohen v.
Sellar, : Though the origin of the engagement ring has been forgotten, it still retains its character
of a pledge or something to bind the bargain or contract to marry, and it is given on the
understanding that a party who breaks the contract must return it. Whether the ring is a
pledge or a conditional gift, the result is the same. The engagement ring given by the
plaintiff to the defendant was given upon the implied condition that it should be returned
if the defendant" (i.e., the lady) "broke off the engagement. She did break the contract,
and therefore must return the ring." It seems reasonably clear that .. if the plaintiff himself
had broken off the promise he could not get back the ring.
This I hold to be the correct legal view. If a woman who has received a ring refuses to
fulfil the conditions of the gift she must return it. So, on the other hand, I think that if the
man has, without a recognized legal justification, refused to carry out his promise of
marriage, he cannot demand the return of the engagement ring.
The claim relating to the engagement ring is not based on the cause of action of breach of
promise of marr