- For federal tax, a common-law partner is someone who cohabits with you in a conjugal relationship and has done so throughout the 12-month period ending at that time, or who is a parent of your child.
- A short separation does not end the status: you are deemed to keep cohabiting unless you live separate and apart for at least 90 days because of a breakdown of the relationship.
- Other laws use different tests, so qualifying for tax purposes does not settle your rights under family law, immigration or pension rules.
Each year, couples in Ontario ask the same question when they file: are we common-law or not? The answer affects which credits and benefits you claim and how your marital status is reported to the Canada Revenue Agency (CRA).
This article walks through the CRA's definition, the child-based route, and what happens when a couple separates briefly. It also shows how the tax test differs from other tests, so you do not assume one answer covers everything.
The basic CRA test
The Income Tax Act defines a common-law partner as someone who cohabits with you in a conjugal relationship and has done so throughout the 12-month period ending at that time, or who is a parent of your child. "Cohabit" in everyday terms means living together as a couple, not just sharing an address.
The CRA describes living common-law as a conjugal relationship with a person who is not your married spouse. Whether a relationship is conjugal depends on the facts of your situation, so it is worth confirming with an accountant or lawyer if it is unclear.
Three ways to qualify
The CRA says you are living common-law if you are in a conjugal relationship with a person who is not your married spouse and one of the following is true:
- The person has lived with you for at least 12 continuous months.
- The person is the parent of your child by birth or adoption.
- The person has custody and control of your child, and your child is wholly dependent on them.
Notice that the parent-of-a-child route does not require 12 months together. If you have a child together and you are living in a conjugal relationship, you may count as common-law partners from the start.
Short separations and reporting a change
Once a couple cohabits, they are deemed to keep cohabiting unless they live separate and apart for at least 90 days because of a breakdown of the relationship. A brief break, or time apart that is not due to a breakdown, does not by itself reset the clock.
You must tell the CRA about a change in marital status by the end of the month after the change. For reporting, the CRA says a separation counts once it has lasted more than 90 days because of a breakdown in the relationship, while the Income Tax Act wording speaks of at least 90 days. If you are close to that line, confirm with the CRA or an accountant. The same goes if your situation is unusual, such as someone still married to a third person, because the answer depends on the facts.
Why other definitions may give a different answer
Being common-law for tax does not automatically mean you are spouses everywhere else. The thresholds vary by purpose.
| Purpose | What the rule requires |
|---|---|
| Federal income tax | Conjugal cohabitation for the 12-month period, or being a parent of your child |
| Family law support (Family Law Act s. 29) | Continuous cohabitation of at least three years, or a relationship of some permanence with a child |
| Immigration | Cohabited in a conjugal relationship for at least one year |
| Pension Benefits Act | Conjugal relationship continuously for at least three years, or some permanence with a child |
| Canada Pension Plan survivor's pension | Lived with the contributor in a conjugal relationship for at least 1 year |
For property, Ontario says common-law couples are not legally required to split property acquired while they lived together. So a tax-based status does not give you married-spouse property rights.
What to do next
- Write down the date you started living together as a couple, and the date of any separation.
- Check whether you have a child together, since that can change which route applies.
- If you separated, count the days apart and note whether the cause was a breakdown of the relationship.
- Report a change in marital status to the CRA by the end of the month after the change.
- Keep records such as a lease, joint accounts and mail at the same address.
- Ask a lawyer or accountant if your facts are unusual, or if you also have family law or estate questions.
Living apart does not automatically rule out cohabitation in every setting. For family law, the Court of Appeal for Ontario upheld a finding that partners of almost 14 years who kept separate Toronto homes throughout were spouses under the Family Law Act s. 29. That result turned on weighing many factors together, including shared shelter, services, economic support and how society saw the couple. Whether a couple living in separate homes counts as cohabiting depends on the facts, so it is worth confirming with a lawyer. Tax and other questions can turn on detailed facts, so get advice if your arrangement is not simple.
Frequently asked questions
How long do we need to live together to be common-law for the CRA?
The CRA describes living common-law as a conjugal relationship with a person who is not your married spouse, where that person has lived with you for at least 12 continuous months, is the parent of your child by birth or adoption, or has custody and control of your child who is wholly dependent on them. So 12 months is one route, not the only one. The Income Tax Act wording looks to cohabiting throughout the 12-month period ending at that time, or being a parent of your child.
Do we count as common-law if we have a child but have not lived together for a year?
Possibly. The Income Tax Act includes a person who is a parent of your child, and the CRA lists being the parent of your child by birth or adoption as a route, along with a conjugal relationship. Your facts matter.
Does a short separation end our common-law status for tax?
Not necessarily. You are deemed to keep cohabiting unless you live separate and apart for at least 90 days because of a breakdown of the relationship. A separation counts for reporting once it has lasted more than 90 days.
Does the CRA definition decide my rights if we split up?
No. Family law uses a different test for support, which is three years of continuous cohabitation or a relationship of some permanence with a child. Property rights also differ, because common-law couples are not legally required to split property acquired while together.
Sources
- Family Law Act, R.S.O. 1990, c. F.3, s. 29 (e-Laws) — Ontario e-Laws
- Ontario.ca – Dividing property when a marriage or common law relationship ends — ontario.ca
- Court of Appeal for Ontario – Climans v. Latner, 2020 ONCA 554 — ontariocourts.ca
- Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), s. 248(1) "common-law partner" — Justice Laws (federal)
- Canada Revenue Agency – Marital status — canada.ca
- Canada Revenue Agency – Change your marital status — canada.ca
- Immigration and Refugee Protection Regulations, SOR/2002-227, s. 1(1) — Justice Laws (federal)
- Pension Benefits Act, R.S.O. 1990, c. P.8, s. 1(1) (e-Laws) — Ontario e-Laws
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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