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 Department.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle du ministère.
February 2, 1994
Ottawa District Office Head Office
Client Assistance Division Rulings Directorate
Nancy York 957-8953
This is in reply to your facsimile message dated January 11, 1994 in which you requested clarification with respect to the establishment and severance of common-law relationships for the purposes of the Income Tax Act. We are providing some general comments on the subject matter followed by more specific responses to your questions.
- The introduction of subsection 252(4) of the Income Tax Act in Bill C-92 was intended to include, in referring to the term "spouse", individuals who are party to a common-law relationship. The term "marriage", previously reserved for legal unions, now includes such common-law relationships. Once a common-law relationship has been established, therefore, it is treated as a marriage in the same way as the legal union.
The difference between a legal union and a common-law relationship is that in a legal union there are clearly recognizable events which establish and dissolve the relationship. The wedding officially begins the marriage and a divorce (or death) officially ends the union. A marriage certificate and a divorce decree are clear evidence of such events. Prior to the wedding and following a divorce the parties to the union are considered to be "single", while during the period of the union the parties are considered to be married to each other. If, during the marriage a breakdown in the relationship occurs, the parties can separate for a period of time while still retaining their married status. A divorce would signify the permanent severance of the relationship.
In a common-law relationship the events are not nearly as clear. There are no ceremonies, certificates or decrees that evidence the start of a marriage or the official and permanent severance. In order to establish that a "marriage" exists in a common-law relationship the couple must satisfy to the Department that, as at a particular time, they had been cohabiting with each other throughout a period of twelve months or that one is the parent of the child of the other. Once having established that a spousal relationship, a marriage, exists, the new provision recognizes that a separation because of a breakdown of the relationship can occur without jeopardizing the marital status. Where the separation (the two individuals not cohabiting with each other) extends past 90 days, a permanent severance is deemed to have taken place at the time of the separation.
Where the couple in either a former legal or common-law relationship proceed to reconcile, they would have to re-establish their marital status by becoming either legally united again in a wedding or by resuming cohabitation with each other in a conjugal relationship.
Each of your enquiries are set out below along with our specific comments.
Q. 1If a common-law relationship is severed, are the individuals involved considered to be "single" or "separated"?
A. 1Once a common-law relationship is severed, following a separation period of at least 90 days, because of a breakdown in the relationship, the individuals are considered single with respect to that relationship. Where the particular time being considered is within the 90 day period they would continue to be considered married, but separated, at the particular time unless the separation extends past the 90 day period. (see also answer to Q. 4)
Q. 2Would a common-law relationship severed in July 1993 be instantly re-established with a reconciliation in July 1994?
A. 2Once the relationship has been severed (not cohabiting for a period of at least 90 days because of a breakdown in the relationship) the couple would have to re-establish the "marriage" by resuming cohabitation in a conjugal relationship. Having once cohabited in such a relationship in the past for a period of at least 12 months the couple are not required to satisfy another 12 month test in order to be considered in a spousal relationship again. Alternatively, if the couple are the parents of a child of the union and can establish that they have resumed cohabiting, the reinstatement of the spousal relationship can be equally instantaneous. Whether the resumption of cohabitation has taken place is always a question of fact.
Q. 3If two childless individuals of the opposite sex cohabit for a period of at least twelve months at some time in the past (e.g. May 1964 to July 1965), would a common-law relationship be instantly re-established if they reconciled on December 31, 1993?
A. 3As explained in the response to Q. 2 where a couple have cohabited in a conjugal relationship throughout a period of at least 12 months at some time before the time at which the determination is being made then the resumption of cohabitation at a subsequent time will immediately revive the spousal relationship.
Q. 4If a common-law couple separated on December 2, 1993 and were never to reconcile or did not reconcile within 90 days of Dec. 2, 1993 - what would their status be for 1993?
A. 4Marital status determinations are normally made as at a particular time, in connection with an event or transaction taking place. If the couple have established in a period prior to the particular time to have met the criteria set out in subsection 252(4) of the Act and would therefore be considered to be in a spousal relationship for the purposes of the Act they will continue to be considered to be in that relationship until the facts indicate that a severance (separation for at least 90 days because of a breakdown of the relationship) has taken place. Once the 90 day period has expired, then any event that took place at a particular time within that 90 day period will be considered to have taken place at a time when the taxpayer was not cohabiting in a conjugal relationship.
Q. 5Does the following statement in subsection 252(4)...
"...unless they were not cohabiting at the particular time for a period of at least 90 days that includes the particular time..."
serve the dual purpose of determining whether or not a common-law relationship has been established in the first place AND whether or not a common-law relationship has been severed after the relationship has been established?
A. 5In our view, the statement within quotations has a singular role of establishing the length of separation necessary in order to consider the termination of a previously established spousal common-law relationship to have taken place.
We hope our comments will be of assistance to you.
Personal and General Section
Business and General Division
Legislative and Intergovernmental
c.c.Client Assistance Directorate
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