27 January 1998 Internal T.I. 9726737 - DEFINITION OF SPOUSE AND COHABITING SPOUSE

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.

Principal Issues:

Definition of Spouse and Cohabiting Spouse

Position:

Taxpayer has 2 spouses per 252(4) but only one cohabiting spouse for purposes of subsection 122.6

Reasons:

Based on definitions of spouse and cohabiting spouse

			January 28, 1998

	Ottawa Tax Services Office 	Headquarters
	Client Services - 3rd floor	Mary Pat Baldwin
			957-8953
	Attn:  G. Obert
	        A/Resource & Technical Officer
			972673

Request for ruling - definition of "spouse" and "cohabiting spouse"

This is in reply to Memorandum of October 3, 1997 in which you request clarification on the definition of "spouse" and "cohabiting spouse".

In addition to a person who is married to the taxpayer, subsection 252(4) of the Income Tax Act (the "Act") was introduced, effective for the 1993 and subsequent taxation years, to expand the term "spouse" to include a party to a common-law relationship, and provide guidelines for establishing whether, at any particular time, a spousal relationship exists.

Paragraph 252(4)(a) of the Act which sets out these guidelines states that:

"words referring to a spouse at any time of a taxpayer include the person of the opposite sex who cohabits at that time with the taxpayer in a conjugal relationship and

(i) has so cohabited with the taxpayer throughout a 12 month period ending before that time, or

(ii) is a parent of a child of whom the taxpayer is a parent (otherwise than because of the application of subparagraph 2(a)(iii))

and, for the purposes of this paragraph, where at any time the taxpayer and the person cohabit in a conjugal relationship, they shall, at any particular time after that time, be deemed to be cohabiting in a conjugal relationship 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".

The purpose of paragraph 252(4)(a) of the Act is to determine whether a particular individual can be considered a spouse in relation to the taxpayer for the general purposes of the Act. It sets out the requirement that parties to a common-law relationship, in order to establish a spousal relationship for the purposes of the Act, must cohabit in a conjugal relationship throughout a 12-month period, or assume a role as parents to a natural child of the relationship.

Section 122.6 of the Act applies with respect to Child Tax Benefits that are payable after 1992. The amount of the benefit payable for a particular month is based on the income of the claimant and that of any other individual who can be considered a "cohabiting spouse" as that term is defined in section 122.6 of the Act.

A cohabiting spouse is defined for the purposes of the child tax benefit as an individual who, on the relevant date, is the spouse of the claimant and who has not by reason of a breakdown of the marriage or conjugal relationship, been living separate and apart from the claimant for a period of at least 90 days as of the determination date.

The example in your memorandum is that Mr. X is separated from Woman "B" (to whom he is legally married) and is presently living common-law with Woman "A" and has been living common-law for longer than one year. Mr.X has had a child with both Woman "A" and Woman "B".

In our opinion based on the example in your memorandum, Woman A would be considered the spouse of Mr. X pursuant to section 252(4) of the Act. Since she is presently not living separate and apart from Mr. X, for purposes of section 122.6 of the Act she and Mr. X would be cohabiting spouses.

for Director
Financial Industries Division
Income Tax Rulings and
Interpretations Directorate
Policy and Legislation Branch