Reporting a Common-Law Separation to the CRA in Ontario: 90-Day Rule

When a common-law relationship ends, one of the first practical questions is when the Canada Revenue Agency (CRA) treats you as separated. The answer affects benefits and credits that depend on your marital status and household income, and it is not always the day one of you moves out.

This article explains the federal tax rule in the Income Tax Act, the 90-day test, and how to tell the CRA. It also explains why this date is separate from your rights under Ontario family law, which use different tests.

Who counts as a common-law partner for federal tax

For federal income tax, a common-law partner is a person who cohabits with you in a conjugal relationship and has done so throughout the 12-month period ending at that time (Income Tax Act s. 248(1)).

There is an exception for partners who share a child. A cohabiting conjugal partner who is a parent of your child is a common-law partner even before 12 months of cohabitation. The CRA's guidance also counts a partner who has custody and control of your child, where the child is wholly dependent on that partner for support.

How the 90-day rule works

Under Income Tax Act s. 248(1), once partners cohabit they are deemed to keep cohabiting unless they have lived separate and apart for at least 90 days because the relationship broke down. Whether your own situation meets that description depends on the facts, so it is worth confirming with a lawyer or accountant if it is unclear.

The separation must last at least 90 days. Once it does, the separated status takes effect from the day you started living apart. The CRA says to wait at least 90 days before reporting a separation.

• Under 90 days apart: the CRA still treats you as cohabiting.
• 90 days or more apart because the relationship broke down: you are treated as separated from the first day you lived apart.
• Short breaks before the separation: the 12 continuous months include any separation of less than 90 days.

A short separation does not restart the clock

If you and your partner lived apart for less than 90 days and then got back together, the CRA says the 12 continuous months of cohabitation include that separation. In other words, a brief break does not stop you from reaching the 12-month mark.

Whether a particular break was because the relationship broke down is a question of facts. If your situation is unclear, such as one partner working away or staying elsewhere for a time, it is worth confirming with a lawyer or accountant.

Telling the CRA and what happens next

You must tell the CRA about a new marital status by the end of the month after the change. You can do this through the CRA's digital services or on Form RC65, Marital Status Change. The CRA will then recalculate your benefits and credits.

These two rules can seem to pull against each other: the CRA says to wait at least 90 days before reporting, yet the status runs back to the day you began living apart. Note the date you started living apart and the date your 90 days were complete, so you have both dates ready when you report. If you are close to a deadline or unsure when the change took effect, a lawyer or accountant can help you confirm the timing.

This is not the family law test

The CRA test is a federal tax test: 12 months of cohabitation, or sooner if you share a child. It is not the test for spousal support in Ontario. Under the Family Law Act s. 29, unmarried partners are spouses for support if they cohabited continuously for not less than three years. They are also spouses for support, however long they lived together, if they cohabited in a relationship of some permanence and are the parents of a child as set out in s. 4 of the Children's Law Reform Act.

So you could be a common-law partner for tax purposes but not a spouse for support, or the other way around. The date you report to the CRA does not decide your family-law rights. Property is a separate matter too: Ontario does not divide property between common-law couples when they separate, and each partner keeps the property they bought. A partner who contributed to property the other owns may have a right to part of it.

What to do next

• Write down the date you and your partner started living apart.
• Count 90 days from that date and note whether the separation continued because the relationship broke down.
• Report the change through the CRA's digital services or on Form RC65 by the end of the month after the change.
• Keep copies of anything you send, and expect your benefits and credits to be recalculated.
• Speak with a family lawyer about support, property and any cohabitation agreement, since the CRA date does not settle those questions.

Frequently asked questions