Section 2 – Individuals and Families
In tax legislation, the term “spouse” means married persons, individuals joined in civil union (only in Quebec) and common-law spouses, regardless of sex.
A common-law spouse is a person cohabiting with another person in a marriage-like relationship in a year and who meets one of the following conditions:
- This person had a child with the individual or the person adopted the other individual’s child, either legally or in fact. In the CRA’s view, to determine whether there has otherwise been a de facto adoption, the spouse must have custody of the child and exercise parental authority on a continuous basis. Simply cohabiting with the child is not sufficient;
- This person has lived with the individual for at least 12 months without interruption1.
If both persons have lived separately for 90 days or more due to the breakdown of their conjugal relationship and they reconcile, they will not be considered as common-law spouses during the period of separation.
Example: Martin and Anne have lived in a marriage-like relationship for two years. On December 3, 2017, they separate but start living together again on January 15, 2018. As the separation lasted for less than 90 days, they will be considered as spouses on December 31, 2017.
A taxpayer may have two spouses for tax purposes: the person with whom he/she is legally married and a common-law spouse. Consequently, when the taxpayer dies, both spouses may be designated as RRSP or RRIF beneficiaries and take advantage of the transfer of these plans without any tax consequences. However, certain non-tax restrictions apply for purposes of the rules governing pension plans.
1 An interruption means a separation of 90 days or more.
For purposes of tax legislation, the term “child” includes a child of a taxpayer’s spouse. However, this relationship ceases upon the death of the child’s natural parent.
This document has been updated on August 31st, 2018 and reflects the state of the Law, including draft amendments, at that date.