Background
Keith Miller and Beverley Richards began a romantic relationship in 2001 and lived together in Richards’ condominium in a marriage-like relationship beginning in 2012. Miller contributed $1,200 monthly toward the mortgage and strata fees, but the parties otherwise maintained separate bank and investment accounts and generally paid their own expenses.
After Miller moved out in January 2022, he commenced family-law proceedings on December 22, 2023, seeking equal division of family property. Richards argued that the claim was barred by the two-year limitation period in s. 198(2)(b) of British Columbia’s Family Law Act because the parties had permanently separated in September 2021. The trial judge agreed, finding that Richards communicated her settled intention to end the relationship on or about September 24, 2021.
The trial judge alternatively stated that, if the separation-date finding were wrong, Miller would receive half the increase in value of Richards’ condominium between 2012 and 2021, while each party would retain the other assets held in their respective names. Miller appealed both the separation-date finding and the proposed unequal treatment of the remaining property.
The Court’s Holding
The Court of Appeal unanimously dismissed the appeal. It held that determining the separation date involved applying the legal test to factual findings and was therefore reviewable for palpable and overriding error, absent an extricable legal error. The trial judge applied the correct test under s. 3(4) of the Family Law Act and made no reviewable error in finding that the parties permanently separated on or about September 24, 2021.
The Court held that continued cohabitation until January 2022 did not determine the separation date because spouses may be separated while living in the same residence. The trial judge was entitled to weigh Richards’ communication that the relationship was over, Miller’s leasing of another apartment, the parties’ hostility and lack of intimacy, and their withdrawal from shared family and social events. The judge was also entitled to treat Richards’ affectionate emails as a complex emotional response to the separation rather than evidence that her intention to separate had changed.
Because Miller filed his claim more than two years after the separation date, his family-property claim was time-barred. That conclusion disposed of the appeal, so the Court did not decide Miller’s challenge to the trial judge’s alternative proposed division of property.
Key Takeaways
- Spouses may be legally separated even while continuing to live in the same home; cohabitation is relevant but not determinative.
- A separation-date finding is generally a question of mixed fact and law and receives appellate deference unless there is an extricable legal error or palpable and overriding factual error.
- Affectionate or emotionally conflicted communications after separation do not necessarily show that a spouse abandoned a settled intention to separate permanently.
- For unmarried spouses in British Columbia, a family-property claim commenced more than two years after separation may be barred under the Family Law Act.
Why It Matters
The decision underscores that courts determine separation by assessing the parties’ communications and conduct as a whole, not simply the date one spouse moves out. Continued residence together, sharing a bed, or emotionally warm messages may carry limited weight when other evidence demonstrates a communicated and implemented intention to end the relationship.
For family-law practitioners, the case also highlights the risk of relying on a later physical move-out date when calculating the limitation period. Once a permanent separation has been communicated and supported by conduct, the statutory clock may already be running.