Henderson Heinrichs LLP

Dividing the Grape Juice

Kevin Heinrichs

Written by: Kevin Heinrichs (View All Posts • View Bio) Published: May 14, 2010

Categorized: Case Analysis, Property Division.
Tags: , , , , , .

You like wine. Who doesn’t? You’ve got a nice collection going, cellared under pristine conditions, perfectly cooled and humidified. And now you and your spouse are splitting up. Wither the wine? How do the courts deal with something that is equal parts collection and food?

While meant to be drunk (clearly), bottles of sought-after wine can command remarkable prices. The values of those bottles can and do constantly shift based upon the providence of the wine (ie. how it has been stored) its age and popularity. How then can a court value a collection and divide it up?

The British Columbia courts have taken more than one position on this issue. In Forzley v. Forzley, 1998 CanLII 5511 (BC S.C.), the court roughly estimated the value of the wine collection and reapportioned other assets to compensate for the parties’ relative interests.

In Hodgkinson v. Hodgkinson, 2003 CarswellBC 2461, the court came to the conclusion that the parties’ collection, “… has no market value. It cannot be resold (Liquor Control and Licensing Act, R.S.B.C. 1996, c.267, s.38).” (at para.38) In her reasons for judgement, Mme. Justice Dillon found at para. 45 that, “Because there was no market value for the wine cellar and because it apparently cannot be sold, I conclude that the wine cellar will be distributed in specie.” “The plaintiff has had the benefit of the cellar for two years without accountability. The defendant, therefore, will have first choice of 24 bottles, followed by the plaintiff’s choice of 24 bottles, and so on. Equality of these choices is based only upon fluid ounces and not value. Each party will have to do their own homework to decide what to choose. ”

In both cases, the court was cognizant of the benefit derived by the party living above the cellar and compensated the other party for assets which may have been guzzled.

For many people, wine is not just a drink and few collect solely for financial reasons. The decision in Hodgkinson appears to take this into account. Given that appraisals will never capture the personal essence of this kind of collection, an in specie division may be the best solution.

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