2005-0134081E5 indicated that two Quebec common-law partners [“conjoints de fait” - also translatable as de facto spouses] can, on the break-down of their relationship, engage s. 146(16)(b) pursuant to a written separation agreement governing the division of their assets in settlement of their rights arising on the breakdown. However, the absence of legal rights in Quebec respecting a common-law union (see Éric v. Lola, 2013 SCC 5) might indicate that there are no such rights to settle. Does CRA consider that the rollovers under ss. 73(1), 146(16) or 146.3(14) can apply where (a) at the time of their separation, they sign a written agreement governing the division of their assets, or (b) the same as (a) except that the division under such agreement is governed by a common-law “union” agreement concluded years previously? CRA responded:
This Technical Interpretation was effectively based on the premise that, although there is no right under the Civil Code of Québec arising out of a common-law partnership, it is not impossible for the annuitant to determine to create rights under a written separation agreement between the annuitant and the annuitant’s common-law partner or former common-law partner relating to the division of property.
... Éric v. Lola case does not change the position of the CRA.
...Such an agreement could be concluded at the time of separation, whether or not a common-law union agreement providing for the rights of each in the event of the union's failure has been previously signed.
The same reasoning applies in our view to the rollover rules in subsections 73(1) and 146.3(14).