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Are You Considered Common-Law For Canadian Tax Purposes?

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  • By: Cory G. Litzenberger, CPA, CMA, CFP, C.Mgr – President & Founder of CGL Strategic Business & Tax Advisors

    This time of year many couples come to us asking “should we choose to file single or common-law?”

    Unfortunately, in Canada, it is not a choice… no matter what your friend said.

    The Canadian system looks at household income to determine your eligibility for tax credits and benefits like the GST Credit, the Canada Child Benefit, and various types of social assistance programs.

    First the boring stuff:

    You can find the legal definition of “common-law partner” in Subsection 248(1) of the Income Tax Act, but in layman terms. They can be simplified into:

    Have you lived together for more than a year in a “conjugal relationship” (more on that later) in which you were not separated (ie: a break up) for more than 90 consecutive days during that period, or
    Have you lived together for one day and you are both a parent of the same child?
    Now my colleagues will point out some rare exceptions to the above, but for most of you reading that’s as simple as it gets.

    I must also point out that the definition of “common-law” for provincial marital or interdependent property laws is different from the definition for income tax purposes and can vary by province. Usually, the income tax definition is a shorter time test.

    “OK, But what does “conjugal relationship” mean?”
    If you are a boring tax nerd like myself, you would understand that the only difference between marriage and common-law on a tax return is that common-law is in a conjugal relationship.

    (insert laugh track here)

    For the rest of you that don’t see the humour, the courts have actually come up with a series of tests to consider on whether or not a conjugal relationship exists.

    The Tax Court of Canada in Hendricken v The Queen, 2008 TCC 48 referenced a different court’s 1980 ruling… (yes, I know… a ruling before the first space shuttle took flight… before Diana Spencer married Prince Charles… and before the first female justice was appointed to the US Supreme Court)

    … but the ruling in 1980 was for a different purpose, but has been expanded and clarified over the year, and Hendricken [2008] stated that it should apply similarly when it comes to the Income Tax Act common-law requirement of “conjugal relationship”.

    As such, there are 7 areas of consideration for a definition of “conjugal relationship”.
    Basically, it is a combination of factors that must be viewed as a whole. It isn’t a black and white test, nor is it a simple yes/no. You have to weigh each one and then look at the whole picture to see if it is more likely or not that you were in a “conjugal relationship”

    So here are the things to consider to figure out if you are in a common-law partnership for tax purposes as according to the Canadian courts:

    1) Shelter

    – Did the parties live under the same roof?
    – What were the sleeping arrangements?
    – Did anyone else occupy or share the available accommodation?

    2. Sexual and Personal Behaviour
    – Did the parties have sexual relations? If not, why not?
    – Did they maintain an attitude of fidelity to each other?
    – What were their feelings toward each other?
    – Did they communicate on a personal level?
    – Did they eat their meals [together?] – What, if anything, did they do to assist each other with problems or during illness?
    – Did they buy gifts for each other on special occasions?

    3. Services
    What was the conduct and habit of the parties in relation to:
    – preparation of meals
    – washing and mending clothes;
    – shopping
    – household maintenance; and
    – any other domestic services?

    4. Social
    – Did they participate together or separately in neighbourhood and community activities?
    – What was the relationship and conduct of each of them toward members of their respective families and how did such families behave towards the parties?

    5. Societal
    – What was the attitude and conduct of the community toward each of them and as a couple?

    6. Support (economic)
    – What were the financial arrangements between the parties regarding the provision of or contribution toward the necessaries of life (food, clothing, shelter, recreation, etc.)?
    – What were the arrangements concerning the acquisition and ownership of property?
    – Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

    7. Children
    – What was the attitude and conduct of the parties concerning the children?

    As you can see, there are many different things to consider.

    Also, you must remember, that it this isn’t a criminal proceeding so the government does not have to prove beyond a reasonable doubt, and they also don’t have to assume your innocence.

    As a result, whichever filing position you are trying to prove, common-law or single, and you are not sure as to which you might be, document as many answers to the questions above as you can while they are fresh in your mind, rather than trying to remember in two years when the CRA does the audit.


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    Local Business

    GoLife.ca lets you assess your insurance needs on your own terms

    riverviewinsurancesolutions

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  • What is GoLife.ca?

    GoLife.ca is a digital life insurance platform that you can trust. It was developed right here in Alberta by people with years of experience in the insurance industry.  The insurance products are supplied by a major Canadian insurance carrier. As a local company with deep roots in Red Deer and Central Alberta, Riverview Insurance Solutions also has significant industry experience and we’re really excited to partner with GoLife.ca to bring this new online solution to our clients.

    Derrick Peterson is President of Riverview Insurance Solutions, a Red Deer company he started more than 30 years ago.

    Determining your needs

    “How much do I need?”  That questions scares 60% of us from getting life insurance. 

    The good news is that it doesn’t have to be that way. Figuring out how much life insurance to get is actually pretty straightforward, less expensive and less stressful than most people expect.

    Remember, the purpose of life insurance is simple; replace income, eliminate debts and leave loved ones in a position of financial strength and control.

    Watch this short video to learn more from Riverview Insurance President Derrick Peterson and Associate Nathan Toornstra.

    Nathan Toornstra is an Associate at Riverview Insurance Solutions and understands the pressure people feel when dealing with an agent. “GoLife.ca is a great place to start, on your own terms.”

    Riverview Insurance Solutions is a Central Alberta-based firm that uses an educational and advisory approach.  

    We have worked with businesses, individuals/families, and farmers to create personalized programs to address their employee benefits, asset protection, and wealth preservation concerns for more than 30 years.

    The true value of insurance is the peace of mind it brings, our goal is to see you protected in any event.

    Our personalized approach is what sets us apart from our competitors, we care deeply about our client’s welfare and pride ourselves on being the stabilizing factor in this ever-changing world. We take the time to get to know you and learn what you expect from your coverage and what you expect from us. From there, we will present you with several options and educate you on the pros and cons of each to assist you in making an informed decision.

    There is no “one size fits all” within the insurance industry and you can rest assured that we will tailor a package specific to any situation you might face and that you will always receive the most protection for your hard-earned dollar.

    Give us a call at 1-877-342-4822.  We’d love to hear from you!

    In the meantime, here are some resources that will help you to better understand why the greatest advantage of having the correct insurance coverage is the peace of mind it brings.

    Social Good: A short history of Life Insurance

    8 things to know about Mortgage Insurance

    Baby on the way – 3 easy steps to be financially prepared

    Life Insurance 101

    Frequently Asked Questions.


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    Entertainment

    Make Sunday special with “Jazzy Brunch” at One Eleven Grill

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  • Do you love Jazz?  Do you love going for Brunch? 

    And who doesn’t.

    One Eleven Grill has a phenomenal Sunday Brunch from 11 to 2 that features live Jazz.

    Here’s our Brunch Menu.  And sorry, we don’t have toast and jam, or bacon and eggs.

    But we do have some amazing dishes to tempt you.

    Smoked Salmon and Eggs featuring 2 poached eggs, toasted square, feta and rose sauce, served with potato/onion hash browns

    Bacon Eggs Benedict – traditional fare, two poached eggs, bacon and bearnaise, served with potato/onion hash browns

    Bacon Eggs Benedict

    Brunch Bowl with sausage, potatoes and other great things like fresh tomato, peppers, sweet onion and bearnaise

    Avocado BLT featuring pepper bacon, cilantro lime aioli, avocado, artisan greens and tomato

    Bacon and Cheese Omelette featuring bacon, cheddar cheese, and eggs, served with potato/onion hash browns

    Scotch Egg – featuring a soft boiled egg, seasoned ground pork, panko breading, lime vinaigrette salad

    Scotch Egg

    Stuffed French Toast that includes fresh strawberries, Nutella, Texas Toast and cinnamon, served with fruit

    Stuffed French Toast

    Cinnamon Brioche is fresh baked with cinnamon, brown sugar, cream cheese, served with fruit

    Phone 403-347-2111 for a reservation and mention “Jazzy Brunch” and you’ll be all set up for a free drink when you arrive, plus get a $25 GC for your next visit.  You can learn more about One Eleven Grill right here. 


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