The British Columbia Court of Appeal upheld the dismissal of a family-property claim commenced more than two years after an unmarried couple separated. In Miller v. Richards, 2026 BCCA 441, the Court confirmed that the parties separated on or about September 24, 2021, although they continued living in the same condominium until January 2022. Physical relocation did not determine when the statutory limitation period began.
Why the Separation Date Was Disputed
Keith Miller and Beverley Richards began living together in a marriage-like relationship in 2012. Miller paid $1,200 monthly toward the mortgage and strata fees on Richards’ condominium, while the parties otherwise maintained separate financial arrangements. Richards maintained that their relationship ended in September 2021, but Miller argued that they did not separate until he moved out in January 2022.
The trial judge accepted evidence that Richards communicated her intention to end the relationship around September 24, 2021. Miller had consulted a family lawyer and transferred money from a joint account to his own account earlier that year. Subsequent evidence included cancelled social plans, separate family gatherings, an absence of physical intimacy and Miller’s arrangements to rent another apartment.
Why Continuing to Live Together Did Not Change the Date
Section 3(4) of British Columbia’s Family Law Act expressly recognizes that spouses may be separated while residing in the same home. Courts may consider a spouse’s communication of an intention to separate permanently and actions demonstrating that intention. Continued cohabitation is relevant, but the separation date depends on the evidence as a whole.
Miller relied on the parties’ continued cohabitation and affectionate emails to challenge the September date. The trial judge accepted that Richards’ emotions fluctuated but found that she had not reversed her decision to separate. The Court of Appeal held that the trial judge was entitled to weigh those facts against the other evidence of separation.
Why the Property Claim Was Too Late
Under section 198(2)(b) of the Family Law Act, spouses who lived in a qualifying marriage-like relationship generally have two years from separation to commence a proceeding to divide family property. Miller filed his notice of family claim on December 22, 2023, more than two years after the separation date found by the trial judge. His claim was therefore time-barred.
The Court of Appeal explained that a trial judge’s determination of separation involves mixed fact and law. Without a distinct legal error, appellate intervention requires a palpable and overriding factual error, which Miller did not establish. Because the limitation ruling resolved the appeal, the Court did not decide the trial judge’s alternative analysis of how property might have been divided.
What Separating Couples Should Take From the Decision
A limitation period may start while former partners still share a residence. Communications, changes in financial conduct, withdrawal from social activities and plans to move out may all help establish when separation occurred. Couples should document significant changes and obtain advice promptly rather than assuming that moving day controls the deadline.
The limitation rules differ for married spouses, and qualifying family dispute resolution can suspend the running of the statutory period. ATAC LAW represents clients in family-property and separation disputes through its family law and divorce proceedings and spousal disputes practices. Its lawyers assess financial records, communications and other evidence bearing on contested separation dates and property claims.
