11 January 2002 Ministerial Correspondence 2001-0110644 - 90-DAY SEPARATION PERIOD

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: (1) Whether the equivalent-to-spouse personal tax credit requires married persons to be separated for at least 90 days; (2) Whether the 90 day period referred to in the definition of "cohabiting spouse" in subsection 122.6(1) of the Act is a period of 90 consecutive days.

Position: (1) No; (2) Yes.

Reasons: (1) Paragraph 118(1)(b) of the Act does not require the separation to have lasted for any period of time, the criteria is rather cohabitation and/or support; (2) The purpose of the provision is to distinguish between ongoing spousal relationships, which may include temporary separations, as opposed to more permanent separations. The criteria is therefore a continuous 90 day separation period and not the accumulation of numerous temporary separations in an ongoing relationship.

January 11, 2002

XXXXXXXXXX

Dear XXXXXXXXXX:

I am replying to correspondence of November 8, 2001, from your assistant, XXXXXXXXXX , regarding a hypothetical situation concerning an individual's entitlement to personal and other tax credits where their spousal relationship is uncertain.

The Canada Customs and Revenue Agency is responsible for administering the Income Tax Act and strives to carry out this goal fairly and uniformly for all taxpayers.

Although the Act does not contain a definition of the term "separated", its provisions dealing with the equivalent-to-spouse personal tax credit, as well as numerous other tax credits, make reference to a spouse or common-law partner, or to a cohabiting spouse or common-law partner. The definition of some of these terms refers to a 90-day separation criterion to help distinguish between ongoing relationships, which include temporary separations of less than 90 days, as opposed to the relationships that are permanently severed.

The Act provides that an equivalent-to-spouse tax credit may be claimed when certain conditions are met. For instance, an individual who, at any time in a year, is married but did not support or live with his or her spouse and was not supported by that spouse may be entitled to the credit. During the separation, the individual claiming the credit must have maintained a self-contained domestic establishment in which he or she actually supported a wholly dependent person. There is no requirement for a separation to have lasted any specific period of time for purposes of the equivalent-to-spouse tax credit. I am enclosing a copy of Interpretation Bulletin IT-513R, Personal Tax Credits, which provides additional information on this tax credit.

With respect to other tax credits based on family income, generally these rules seek to include only the income of those persons who are involved in an ongoing conjugal relationship. However, a separation for a continuous period of at least 90 days will affect these persons' family situation and their entitlement to the tax credits.

Entitlement to the GST credit is mentioned as a concern in the situation submitted. Under the Act, an individual's entitlement to the GST credit is based on the income levels of both the individual and the qualified relation. Qualified relation refers to a cohabiting spouse at the end of a year. A cohabiting spouse does not include a married person who, at the end of the year, is living separate and apart, because of a marriage breakdown, for a period of at least 90 days. For the reasons given above, this separation period must consist of at least 90 consecutive days and cannot simply be the accumulation of numerous temporary separations in an ongoing relationship. However, this 90-day separation period might be any period that includes the end of the year, although it does not need to end on that day. Therefore, if the individual is living separate and apart from his or her spouse on December 31, 1999, and so lives for any period of at least 90 consecutive days that includes December 31, 1999, they would not be considered cohabiting spouses at the end of 1999.

As a number of conditions must be met for the above credits to apply, the determination of whether an individual qualifies for these credits requires a review of all the facts of his or her particular case. Accordingly, I would suggest that individuals contact their local tax services office for assistance in determining whether they are entitled to these credits.

I trust that the information will be of assistance.

						Yours sincerely,

						Martin Cauchon

Attachment

C.C. Minister's Office
Political Assistant

Patrick Massicotte
957-9232
November 20, 2001
MCG Editor: Wendy Post/957-9242

Revised: Patrick Massicotte 01/12/05.

Finalized 2001-12-21 WP/dan