Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the CRA.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle de l'ARC.
Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the CCRA.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle de l'ADRC.
Principal Issues: Can two individuals who maintain separate residences be considered to be in a "conjugal relationship" for purposes of the Act.
Position: Question of Fact.
Reasons: There are many different components of a relationship which can be reviewed when determining whether two individuals are in a "conjugal relationship". Not all components must be present. The fact that two individuals maintain separate residences would not, in and by itself, preclude a finding that they are in a conjugal relationship for purposes of the Act.
2002-016118
XXXXXXXXXX Karen Power, CA
(613) 957-2082
October 29, 2002
Dear XXXXXXXXXX:
Re: Meaning of "Common-Law Partner"
We are writing in response to your letter of August 26, 2002, wherein you requested an advance income tax ruling with respect to the definition of "common-law partner" as defined in subsection 248(1) the Income Tax Act (the "Act"). Specifically, you enquire whether two individuals who maintain separate residences can be considered "common-law partners" for purposes of the Act.
As we have previously indicated, advance income tax rulings are only issued for transactions that are seriously contemplated and are not of a hypothetical nature. Your request does not involve a specific proposed transaction and appears to be of a hypothetical nature. Although we are unable to provide you with an advance ruling on this matter, we have set out some general comments which we hope will be of assistance to you.
The term "common-law partner" is defined in subsection 248(1) of the Act as follows:
"...with respect to a taxpayer at any time, means a person who cohabits at that time in a conjugal relationship with the taxpayer and
(a) has so cohabited with the taxpayer for a continuous period for at least one year, or
(b) would be the parent of a child of whom the taxpayer is a parent, if this Act were read without reference to paragraphs 252(1)(c) and (e) and subparagraph 252(2)(a)(iii),
and, for the purposes of this definition, where at any time the taxpayer and the person cohabit in a conjugal relationship, they are, at any particular time after that time, deemed to be cohabiting in a conjugal relationship unless they were not cohabiting at the particular time for a period of at least 90 days that includes the particular time because of a breakdown of their conjugal relationship."
Whether two individuals no longer cohabit with each other "because of a breakdown of their conjugal relationship" is a question of fact. The courts, especially in the area of family law, have looked at the term "conjugal relationship". There is one case in particular to which you make reference, in which the courts provide some guidelines on what constitutes a "conjugal relationship". This case was validated by the Supreme Court of Canada in M. v H ([1999] 2 S.C.R. 3, 46 R.F.L. (4th) 32) where the following was stated at paragraphs 59 and 60:
"Molodowich v Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist.Ct), sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. While it is true that there may not be any consensus as to the societal perception of same-sex couples, there is agreement that same-sex couples share many other "conjugal" characteristics. In order to come within the definition, neither opposite-sex couples nor same-sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is "conjugal".
Certainly an opposite-sex couple may, after many years together, be considered to be in a conjugal relationship although they have neither children nor sexual relations. Obviously the weight to be accorded the various elements or factors to be considered in determining whether an opposite-sex couple is a conjugal relationship will vary widely and almost infinitely. The same must hold true of same-sex couples. Courts have wisely determined that the approach to determining whether a relationship is conjugal must be flexible. This must be so, for the relationships of all couples will vary widely."
In the Tax Court of Canada decision of Lavoie v. the Queen 99 DTC 3546 (affirmed 2001 DTC 5083, FCA), Justice Dussault cited the Sylvie Milot decision (unreported decision rendered on May 10, 1995, file No. 94-2925(IT)I) in providing context for what constitutes a conjugal relationship. In the Milot decision, Judge Lamarre Proulx states the following:
"More specific judicial guidance as to what constitutes cohabitation or a conjugal or marriage-like relationship is found in a judgment of the Ontario 30 District Court (Molodowich), wherein Kurisko D.C.J. identified the following issues as relevant:
1. Shelter
(a) Did the parties live under the same roof?
(b) What were the sleeping arrangements?
(c) Did anyone else occupy or share the available accommodation?
2. Sexual and Personal Behaviour:
(a) Did the parties have sexual relations? If not, why not?
(b) Did they maintain an attitude of fidelity to each other?
(c) What were their feelings toward each other?
(d) Did they communicate on a personal level?
(e) Did they eat their meals together?
(f) What, if anything, did they do to assist each other with problems or during illness?
(g) Did they buy gifts for each other on special occasions?
3. Services:
What was the conduct and habit of the parties in relation to:
(a) preparation of meals;
(b) washing and mending clothes;
(c) shopping;
(d) household maintenance; and
(e) any other domestic services?
4. Social:
(a) Did they participate together or separately in neighbourhood and community activities?
(b) What was the relationship and conduct of each of them toward members of their respective families and how did such families behave towards the parties?
5. Societal:
What was the attitude and conduct of the community toward each of them and as a couple?
6. Support (economic):
a) What were the financial arrangements between the parties regarding the provision of or contribution toward the necessities of life (food, clothing, shelter, recreation, etc.)?
b) What were the arrangements concerning the acquisition and ownership of property?
c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
7. Children:
What was the attitude and conduct of the parties concerning the children?
As Kurisko D.C.J. further observed, the extent to which each of the aforementioned seven different components will be taken into account must vary with the circumstances of each particular case."
As you have indicated, there are several Ontario and Alberta family law court cases that have concluded that two individuals can be found to be living in a conjugal relationship even if they maintain separate residences.
In any given situation, it is a question of fact whether a person is living in a conjugal relationship for purposes of the Act. However, we agree that there are many components involved in a conjugal relationship and not all components must be present for a conjugal relationship to exist. In our view, the fact that two individuals maintain separate residences would not, in and by itself, preclude a finding that they are in a conjugal relationship for purposes of the Act. Consequently, such individuals may be considered "common-law partners" as that term is defined in subsection 248(1) of the Act.
Yours truly,
Milled Azzi, CA
for Director
Business and Partnerships Division
Income Tax Rulings Directorate
Policy and Legislation Branch
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