Nov 14, 2020

60-Year Old Spouse Receives More Than 50% of Family Property Upon Separation

Cook v Cook, 2020 BCSC 389 (CanLII)

In Cook v. Cook 2020 BCSC 389 the issue was whether fairness, after a 38-year marriage, required a reapportionment of property in favour of Mrs. Cook, or compensatory spousal support. The parties were 60 and 61 respectively. The facts revealed that the end of their marriage accompanied Mr. Cook’s receipt of a $425,000 inheritance and a cottage property, (excluded property) a windfall that he failed to disclose to his wife. At the same time, he changed his will to benefit their adult children.

The court noted that taking into account Mr. Cook’s excluded property, he was leaving the marriage with assets valued at more than half of a million dollars more than his wife. Quoting Moge v. Moge SCC and Chutter v. Chutter BCCA, the court recited the legal maxim that “the longer the duration of the marriage, the closer the economic union, the greater will be the claim to an equal standard of living upon marriage dissolution.”

Mr. Cook had retired from Toyota Canada, preferring to spend time at his lake cottage, no doubt buoyed by his cash inheritance. Mrs. Cook currently earned $13,000 a year. She was a stay-at-home mom up until 1999, when she began working part-time. She had no post-secondary education. At the time of trial both parties had additional pension income and in the few years prior to their 2017 separation, Mr. Cook earned an annual income of $140,000 and Mrs. Cook, $80,000. Each of them retired a few years before their separation.

Mrs. Cook had received an inheritance of $100,000 much earlier in their marriage which had been used by the family. She also received an inheritance after the date of separation, of $111,000, which was also excluded property.

Mr. Justice Jenkins determined that Mrs. Cook was entitled to compensatory support which would be satisfied by a reapportionment of property in her favour, leading to an award that saw Mrs. Cook retain property valued at $770,000, consisting of cash and real estate, while Mr. Cook would retain property valued at $977,000, also cash and real estate.

The facts of this case supported an award of compensatory support which could not be achieved through periodic support payments, given the parties’ mutual retirement and their similar ages. The length of the marriage, the raising of three children, and Mr. Cook’s excluded property, provided a basis to adjust the division of property to achieve a measure of fairness, but notably not an equalization of family property and excluded property.