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.
Principal Issues: If a couple has been living common-law and begin to live separate and apart on XXXXXXXXXX of the particular tax year and file their returns after the 90 day separation period is over what should they indicate as their marital status for the particular tax year? If they file returns for the particular tax year before the 90 day separation period is over what should they indicate as their marital status for the particular tax year?
Position: If either individual files his or her return after the 90 day separation period is over that individual should indicate on the first page of the return that he or she is separated. If either individual files his or her return before the 90 day separation period is over that individual should indicate on the first page of the return that he or she is living common-law. However, if after filing the return the couple continues to live separate and apart for 90 days or more they should file either a letter or RC65 "Marital Status Change" form and indicate that they have separated on XXXXXXXXXX, for the particular tax year.
Reasons: The definition of common-law.
November 8, 2012
Colette Fournier Income Tax Rulings Directorate
Programs Officer Financial Industries Division
Training & Content Support Section Nancy Shea-Farrow
Taxpayer Services Directorate 905-721-5099
2012-044023
Subject: Common-law partners
This is in response to your e-mail on March 15, 2012 asking what marital status should be indicated on an individual's income tax return (the "return") in the following situation.
The facts are
- Two individuals with no children were living common-law for XXXXXXXXXX years separate on XXXXXXXXXX.
- Each of these individuals was single prior to living common-law with each other.
You ask if they file their return for the XXXXXXXXXX tax year after the 90 day separation period is over what should they indicate as their marital status? You also ask if they file their return for the XXXXXXXXXX tax year before the 90 day separation period is over what should they indicate as their marital status?
Section 150 of the Income Tax Act (the "Act") generally speaking, requires each individual to file a return for each tax year where tax is payable for the year on or before the following April 30th.
Subsection 248(1) of the Act provides for the definition of "common-law partner" and under the proposed amendment that is applicable to the Act in general, for 2001 and later taxation years, with respect to a taxpayer at any time, includes, a person who cohabits at that time in a conjugal relationship with the taxpayer and, has so cohabited throughout the 12-month period that ends at that time. For the purpose 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 living separate and apart 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.
Page 1 of the return has a section for marital status. The individual filing the return is required to tick the box in the section that applies to the individual's marital status on December 31 of the particular tax year, in this case, XXXXXXXXXX. Marital status for a particular individual is the individual's situation with respect to whether they are married, living common-law, widowed, divorced, separated or single.
If either individual in the given fact situation files his or her return after the 90 day separation period is over that individual should indicate on the first page of the return that he or she is separated. In other words, if a couple has been living separate and apart for 90 days or more the couples' common-law partnership will cease to be effective retroactively to the first day of their separation.
If either individual in the given fact situation files his or her return before the 90 day separation period is over that individual should indicate on the first page of the return that he or she is living common-law. In other words, you are deemed to continue the common-law partnership until at least 90 days after the parties begin living separate and apart because of a breakdown in the relationship. However, if after filing the return the couple continues to live separate and apart for 90 days or more they should file either a letter or RC65 "Marital Status Change" (RC65) form and indicate that they have separated on XXXXXXXXXX. The letter or form should be signed by both individuals.
You have suggested that individuals that cease to live common-law should indicate that they are single. The Act does not define single. However, according to "The Dictionary of Canadian Law" "single" is defined to mean unmarried. It defines "single person" as an adult person who is a widow, widower, unmarried, deserted, separated or divorced and who is not living with another person as husband or wife. Thus it would not be incorrect for an individual that has ceased living common-law to indicate that he or she is single as you have suggested. The Act also does not define "separated" but the Canada Revenue Agency has applied the term (see RC65) to individuals, that were in a common-law partnership or married individuals, who are living separate and apart because of a breakdown in the relationship for 90 or more days, with respect to the determination of the goods and services tax/harmonized sales tax credit and to benefits such as the Canada child tax benefit and the working income tax benefit.
We trust our comments will be of assistance.
Sharmini Ratnasingham
For Director
Business and Employment Division
Income Tax Rulings Directorate
Legislative Policy and Regulatory Affairs Branch
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