2014-0543311E5 Reporting marital status

Principal Issues: Where a legally married couple is separated indefinitely for medical reasons, should the spouses’ marital status be reported as “separated” on their tax return?

Position: In general, spouses are not considered to be living separate and apart where the separation is solely for medical reasons. It is a question of fact whether two spouses are living separate and apart because of a breakdown of their marriage.

Reasons: Previous positions

Author: El-Kadi, Randa
Section: 122.6 – definition of “cohabiting spouse or common-law partner; 118(1)(a); 118(4)(a.1).

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                                                                                                                                          2014-054331
                                                                                                                                          Randa El-Kadi
                                                                                                                                          (613) 957-8976

December 23, 2014

Dear XXXXXXXXXX,

We are replying to your fax of August 13, 2014, in which you are requesting clarification of how individuals should report their marital status on their T1 Individual Tax and Benefit Return in situations where there has been a change in their relationship due to health reasons.  In your letter, you indicate that a legally married couple no longer reside together because one spouse has advanced Alzheimer’s and has been moved to a nursing home indefinitely. 

You state that in this particular situation, there is no longer an intimate relationship between the spouses.  The spouse with Alzheimer’s no longer knows the name of the healthy spouse; they no longer socialize together or perform domestic services for each other.  As a result of this situation, you state that they show almost no signs of a conjugal relationship and the healthy spouse has made a conscious decision not to care for his/her spouse other than visiting and ensuring that all of the financial matters relating to the spouse’s care are met.  It is your view that they have had a breakdown of their marital relationship and as such, should report their marital status as separated.  

Our comments:

This technical interpretation provides general comments about the provisions of the Income Tax Act (the “Act”) and related legislation (where referenced).  It does not confirm the income tax treatment of a particular situation involving a specific taxpayer but is intended to assist you in making that determination. The income tax treatment of particular transactions proposed by a specific taxpayer will only be confirmed by this Directorate in the context of an advance income tax ruling request submitted in the manner set out in Information Circular IC 70-6R6, Advance Income Tax Rulings and Technical Interpretations.

The Act does not define the term “separated”.  However, the Canada Revenue Agency (“CRA”) accepts that individuals are separated when they live separate and apart from their spouse or common-law partner because of a breakdown in the marriage or common-law partnership for a period of at least 90 days without reconciling.

The determination as to whether two individuals are living separate and apart because of a breakdown of their marriage or common-law partnership is a question of fact in each situation.  It is the CRA’s position that spouses or common-law partners are not living separate and apart for purposes of the Act where the separation is for reasons other than a breakdown of their relationship. This may be the case, for example, where there is a separation for attendance at school or for work, or where there is an involuntary separation such as for medical reasons or incarceration. 

To that effect, the courts have considered a list of generally accepted characteristics of a conjugal relationship, which would indicate that individuals are not living separate and apart. These include, among others, shared shelter, sexual and personal behaviour, services, social activities, the societal perception of the couple, and economic support. The courts have also recognized that these characteristics may be present in varying degrees and that not all are necessary for a relationship to be found to be conjugal.  As such, each characteristic is to be given its proper weight in the context of each particular case.

Therefore, whether two individuals are living separate and apart because of a breakdown of their marriage or common-law partnership can only be determined by the intentions and actions of the individuals involved.

We trust our comments will be of assistance.

Yours truly,

Pamela Burnley, CPA, CA
Tax Credits and Ministerial Issues
Business and Employment Division
Income Tax Rulings Directorate

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