Common-Law Partner

See Also

Pierre v. Agence du revenu du Québec, 2019 QCCQ 2137

couple had a fraught but “conjugal” relationship

At issue was whether the taxpayer was a “de facto spouse” of Madam on December 31, 2016. Taxation Act, s. 2.2.1 provided (similarly to ITA – s. 248(1) – common-law partner) that the concept of spouse rested on the concept of cohabiting “in a conjugal relationship,” and provided that:

where at any time the taxpayer and the person referred to in that subparagraph cohabit in a conjugal relationship, they are deemed to be so cohabiting at any particular time after that time, 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.

After having lived together since March 2011, and after a daughter was born the next year, the relationship began to deteriorate gradually. There were major difficulties in their relationship by July 2016, and on September 16, 2016 Madam signed an offer to purchase another property – but she decided not to satisfy the financing condition after the taxpayer agreed that they would visit a counsellor, which occurred in weekly visits thereafter until about the end of October. There was (according to Madam) a “devastating” quarrel in April 2017, the taxpayer departed from the shared home in May 2017 and a sale of that home closed in August 2017.

Edwards, JCQ found that the taxpayer was a de facto spouse of Madam on December 31, 2016, so that his appeal was dismissed and the positions of the ARQ and Madam that they continued to be de facto spouses on the date was confirmed. After noting that the effect of the 90-day rule quoted above was to make the issue turn on whether they had ceased to cohabit by early October 2016, he stated (at paras. 55, 61, TaxInterpretations translation):

[T]he jurisprudence has emphasized five (5) principal criteria. …:

1. Shelter

[T]he persons involved lived under the same roof … .

2. Personal and sexual behaviour

As for personal conduct, the appellant and madam conducted themselves as a married couple. They ate together 1 or 2 times per week. … It is to be noted that during the reconciliation efforts during the course of their therapy as a couple, more affection for each other was demonstrated (in particular, the walk hand-in-hand on Mount Royal). …

As for sexual conduct … its absence during that period is to be noted. …

3. Mutual services and support

[T]he appellant and madam shared in and rendered to each other tasks and services of a domestic nature, for instance, meal preparation, grocery shopping, dish washing, collecting and taking out the garbage and lawn maintenance. …

4. Social activities and perceptions

For the major social occasions (for example, Christmas, Easter, anniversaries), the appellant and madam were together and projected an image of persons in a conjugal relationship.

5. The child

… They acted towards [their] child as persons living in a conjugal relationship and, during this period, projected towards this child the image of a united couple. …

Respecting the criterion as to the presence or not of sexual relations, the jurisprudence has determined that, after a certain number of years of existence as a couple, the absence of such relations does not prevent the court from characterizing their relationship as marital or as conjugal.

Words and Phrases
conjugal relationship

Hendricken v. The Queen, 2008 DTC 2586, 2008 TCC 48 (Informal Procedure)

The taxpayer was found to be living in a conjugal relationship with another man, notwithstanding that he slept alone in his own bedroom most of the time, arrived separately at most social events, did not exchange gifts with her, and would correct members of the community who suggested or implied that they were living together as a couple, given that they had four children together, lived in the same household (which was maintained by him) for 20 years, continued to have sexual relations with each other and not with others, held three properties together as joint tenants, and provided various household and maintenance tasks between them.

Administrative Policy

2 February 2017 Quebec CPA Individual Taxation Roundtable Q. 1.3, 2016-0674821C6 F - Individuals separated living under the same roof

meaning of living "separate and apart"

CRA accepts the family law jurisprudence that former spouses or common-law partners can potentially qualify as living separate and apart even if they are living under the same roof (e.g., pending sale of the house), and cited the criteria in M. v. H, [1999] 2 S.C.R. 3 of “shared shelter, sexual and personal behaviour, services rendered between them, social activities and relations, economic support and children, as well as the societal perception of the couple.”

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 122.6 - Cohabiting Spouse or Common-Law Partner couple under the same roof can be living separate and apart 280

3 October 2013 External T.I. 2013-0501051E5 F - Conjoint de fait - Common-Law Partner

not living under the same roof for some time not decisive as to a “conjugal relationship”

Are two individuals "common-law partners" if they have not shared the same roof over a period of one year ending before the particular time? After noting the criteria adopted in M. v. H,. [1999] 2 S.C.R. 3 of “shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple,” CRA stated:

[T]he mere fact that two persons do not live together does not in itself prevent them from being considered to be in a conjugal relationship for the purposes of the Act.

If two persons have been in a conjugal relationship for at least one year, we consider them to be common-law partners for the purposes of the Act.

Words and Phrases
conjugal relationship

11 July 2013 External T.I. 2013-0490591E5 F - Montant pour une personne à charge

can be in a conjugal relationship even if live in the same home for only half of each year

A Taxpayer living in France (initially described as non-resident) frequently sees another person (the "Other Person") who lives the year half and half in Quebec and France, but they have never lived together in the same home for more than six consecutive months. They signed a Solidarity Pact but are not spouses. Would the Taxpayer and the Other Person can be considered common-law partners in Canada? CRA responded:

In general, the characteristics that identify a conjugal relationship are sharing the same roof, personal and sexual relationships, services, social activities, financial support, children, and social perception of the couple. …

In the absence of a complete description … we cannot determine whether a conjugal relationship … exits … . The fact that two people live in the same home only half a year would not prevent us from concluding that they live in a conjugal relationship.

Words and Phrases
conjugal relationship
Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 118 - Subsection 118(1) - Paragraph 118(1)(b) - Subparagraph 118(1)(b)(ii) conditions not satisfied where children did not live with non-supporting husband following separation 136
Tax Topics - Income Tax Act - Section 2 - Subsection 2(1) sole fact of a non-resident having a conjugal relationship with a Canadian resident does not render him a resident 165

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