I Moved to the US but My Spouse Stayed in Canada. How Do We File?

Two answers, and they pull on each other. Canada first: a spouse who stays behind is usually a significant residential tie, and the CRA’s position is that someone who hasn’t severed all significant ties generally stays a factual resident, decided case by case on all the facts. The US side runs on its own rule. No joint return may be made for a year in which either spouse was a nonresident alien at any time, which generally leaves married filing separately, a head-of-household route with real conditions, or an election that puts both of your worldwide incomes on the US return. The election math itself, and the differences between 6013(g), 6013(h) and the first-year choice, are in dual-status return or full-year election.

My spouse stayed in Canada. Am I still a Canadian tax resident?

Possibly, and it turns on your spouse rather than your own travel. Under folio S5-F1-C1, paragraph 1.13, a spouse who stays behind is usually a significant residential tie for the whole time you’re away, and so are dependants. Unless you sever all significant ties on leaving, the folio says you generally stay a factual resident taxed on worldwide income, decided case by case. Those are criteria, not a determination about your facts. One carve-out sits in the same paragraph: a spouse isn’t a significant tie where you were already living separate and apart because of a breakdown.

“If an individual who is married or cohabiting with a common-law partner leaves Canada, but his or her spouse or common-law partner remains in Canada, then that spouse or common-law partner will usually be a significant residential tie with Canada during the individual’s absence from Canada.” And the last sentence of the same paragraph: “Where an individual was living separate and apart from his or her spouse or common-law partner prior to leaving Canada, by reason of a breakdown of their marriage or common-law partnership, that spouse or common-law partner will not be considered to be a significant tie with Canada.”

Both of those sentences are CRA Income Tax Folio S5-F1-C1, paragraph 1.13, and they state a criterion. It isn’t the answer. A dwelling place, a spouse and dependants are the ties the folio says will almost always be significant (paragraph 1.11), and keeping one feeds a facts-and-circumstances test without deciding it. On the outcome the folio says residence “can only be determined on a case by case basis after taking into consideration all of the relevant facts” (paragraph 1.10). The test itself belongs on its own page: the four Canadian residency tests and the order they actually run in.

What date did I actually stop being a Canadian resident, if my spouse left later than I did?

Usually later than your own flight, and it’s a question of fact. The CRA’s general approach is that you become a non-resident on the date you sever all residential ties, which usually coincides with the latest of three dates: the day you leave Canada, the day your spouse or dependants leave, and the day you become a resident of the country you moved to. One exception flips that. If you were resident in the US before you came to Canada and you’re leaving to re-establish residence there, you generally become a non-resident on the day you leave, even if your spouse stays behind for a while.

“Generally, the CRA will consider the appropriate date to be the date on which the individual severs all residential ties with Canada, which will usually coincide with the latest of the dates on which: the individual leaves Canada; the individual’s spouse or common law partner and/or dependants leave Canada (if applicable); or the individual becomes a resident of the country to which he or she is immigrating.”

That’s paragraph 1.22 of the same folio. The exception in paragraph 1.23 covers someone who “was resident in another country prior to entering Canada and is leaving to re-establish his or her residence in that country,” and it names the stay-behind spouse selling the home or letting a school year finish as facts that don’t push the date. Read the two together or you get the wrong answer for a lot of the people this page is written for.

The date decides how much of the year Canada reaches. Canadian tax is charged on the taxable income of every person resident in Canada at any time in the year (Income Tax Act subsection 2(1)), and where residence ends part way through, section 114 confines the reach to the resident part of the year. US tax paid by someone resident in Canada at any time in the year may be relieved by a foreign tax credit, capped by the limit written into subsection 126(1). Three events can fall on three different days here: you leaving, your family leaving, and you becoming a US resident under IRC section 7701(b)(1)(A). The Canadian departure date keys to the first two and to when you became resident where you moved. Your US status keys to the third.

For the mechanics once the date is settled, use the full leaving-Canada checklist, written for a household that leaves together, and adjust the date to your own facts. If part of the pay in question is RSUs that settle after the move, why one tranche can land on both a W-2 and a T4, and which country taxes which slice is the companion question.

Can I file a joint US return with my spouse who’s still in Canada?

Not for any year in which they were a nonresident alien at any time, unless you both elect. IRC section 6013(a)(1) is the bar, and married filing separately is the usual default. Head of household is the other door, and it’s narrower than it looks. You’re treated as not married at the close of the year if your spouse was a nonresident alien at any time in it, but you still need a household that’s the main home of a qualifying child or dependant for more than half the year, and the IRS says that person can’t be your nonresident spouse.

“no joint return shall be made if either the husband or wife at any time during the taxable year is a nonresident alien” (IRC section 6013(a)(1))

The head-of-household route has two locked pieces. IRC section 2(b)(2)(B) is the useful half: a taxpayer “shall be considered as not married at the close of his taxable year if at any time during the taxable year his spouse is a nonresident alien.” That clears the marital gate and nothing else. Section 2(b)(1) still makes you maintain a qualifying household, and under subparagraph (A) that means a home which is, for more than half the year, the principal place of abode of a qualifying child or dependant. Section 2(b)(3)(A) rules you out if you were yourself a nonresident alien at any time in the year. The IRS adds that the qualifying person has to be someone other than the nonresident spouse (IRS, Nonresident spouse). With no qualifying person other than your spouse, head of household isn’t available, and which relatives can fill that slot is worth checking on your own facts.

What does it cost to elect to treat my Canadian spouse as a US resident?

Worldwide income for both of you, for every year the choice is in effect, and once it has ended the two of you can never make it again. Those are the IRS’s own terms for the section 6013(g) election, along with a joint return for the year you make it. The duration rule, the once-only bar, the amended-return route, and whether electing beats a dual-status return are all worked through on dual-status return or full-year election, which owns that comparison.

“In the case of … (A) a married individual filing a separate return where either spouse itemizes deductions, (B) a nonresident alien individual, … the standard deduction shall be zero.” (IRC section 63(c)(6))

Read that as your spouse’s position absent the election. The zero in subparagraph (B) is a rule about nonresident alien individuals, and it’s why your spouse’s own US position looks nothing like yours. Subparagraph (A) is a separate rule and it doesn’t bite on you merely for filing separately: on its own words it applies where either spouse itemizes. What the election changes is which class your spouse is in, because section 6013(g) treats an electing spouse as “a resident of the United States … for purposes of chapter 1 for all of such taxable year”. The statute opens that election to someone who, “at the close of the taxable year for which an election under this subsection was made, was a nonresident alien individual married to a citizen or resident of the United States, if both of them made such election to have the benefits of this subsection apply to them”.

The treaty question stays on this page too, and this page doesn’t settle it. The election is US domestic law, and whether it also makes your spouse a treaty resident of the US is fact-specific and worth advice. The IRS goes as far as saying you generally can’t claim treaty benefits as a resident of a foreign country while the choice is in effect, then adds that “the exception to the saving clause of a tax treaty might allow a tax treaty benefit on certain specified income” (IRS, Nonresident spouse).

One thing the cost sentence above does not price, and neither does the companion page: US information reporting for your spouse. Treating them as a US resident for all of the taxable year puts them inside the US filing system, where information returns run alongside the income tax return. The IRS instructions for Form 8938 list “a nonresident alien who makes an election to be treated as a resident alien for purposes of filing a joint income tax return” among specified individuals, so a spouse who elects can come within that form’s reporting on their Canadian accounts, once its own thresholds are met (Instructions for Form 8938). The FBAR rule is written on a different definition. A resident of the United States there is “an individual who is a resident alien under 26 U.S.C. 7701(b) and the regulations thereunder …”, and the sentence carries on to substitute the Bank Secrecy Act’s own meaning of the term United States for the income tax one (31 CFR 1010.350(b)). Whether a spouse who is a US resident only by election falls inside that definition is not something this page answers. Get the reporting side settled on your own facts before you elect.

Does my spouse need an ITIN or a Social Security number?

One or the other, on the IRS’s stated rule, whether the return is joint or separate. If your spouse is neither a US citizen nor a US resident within the meaning of IRC section 7701(b)(1)(A), the IRS says they must have a Social Security number or an ITIN. The SSN route is Form SS-5, applied for at a social security office or a US consulate. If they aren’t eligible for an SSN, Form W-7 applies for an ITIN instead. An ITIN is a federal tax number and does nothing else: it doesn’t provide or change immigration status, doesn’t authorize work, and can be applied for regardless of immigration status.

“An ITIN is issued by the IRS for federal tax purposes only. An ITIN doesn’t: Qualify you for Social Security benefits or the Earned Income Tax Credit; Provide or change immigration status; Authorize you to work legally in the U.S.; Serve as identification outside the federal tax system.”

That’s IRS, Individual Taxpayer Identification Number, which also says a nonresident alien or their spouse can apply regardless of immigration status. The identification requirement itself sits on the Nonresident spouse page. There’s a live practice question about what actually goes in the spouse identification field on a separate return, and it’s worth raising on your own file before you assume an answer either way.

What does my spouse’s Canadian return look like, and does Canada let us file together?

In Canada you each file your own. Subject to the exception in subsection 150(1.1), the Income Tax Act requires a return for each taxation year of a taxpayer, filed by that person, so your spouse’s filing runs on their own facts while they’re resident there. Separate returns don’t mean the other spouse’s income is ignored. The spouse or common-law partner amount, available to someone who supports their spouse and isn’t living separate and apart because of a breakdown, is reduced by that spouse’s income for the year. One household, two returns, and each return still looks at the other.

“Subject to subsection (1.1), a return of income that is in prescribed form and that contains prescribed information shall be filed with the Minister, without notice or demand for the return, for each taxation year of a taxpayer … (d) in the case of any other person, on or before (i) the following April 30 by that person” (ITA paragraph 150(1)(d))

That opening exception is not decorative. Subsection 150(1.1) says subsection (1) does not apply to an individual’s taxation year unless tax is payable under that Part by the individual for the year, or, where the individual is resident in Canada at any time in the year, they have a taxable capital gain or dispose of capital property in the year, or an HBP or LLP balance is a positive amount at the end of the year. So the filing duty in (1) does not reach every taxation year of every individual, and whether your spouse should file anyway is a separate question from whether (1) requires it.

The spouse-amount mechanic is in ITA paragraph 118(1)(a), where element C.1 of the formula is “the income of the individual’s spouse or common-law partner for the year or, if the individual and the individual’s spouse or common-law partner are living separate and apart at the end of the year because of a breakdown of their marriage or common-law partnership, the spouse’s or common-law partner’s income for the year while married to, or in a common-law partnership with, the individual and not so separated”. That second limb is the measure for the couple in row D of the table below. The paragraph’s opening words carry the entry conditions: you have to support the spouse and not be living separate and apart from them because of a breakdown. Family benefits run on their own track and have their own page: what happens to the Canada child benefit and the RESP when the family is split across the border.

So how do the two returns line up, situation by situation?

Five common shapes, and the Canadian answer moves across them while the US answer mostly holds still. What moves on the Canadian side is whether the stay-behind spouse counts as a significant tie and what that does to the departure date. What drives the US side is your spouse’s nonresident-alien status, which keeps a joint return off the table unless you both elect. Read the table as general patterns with the facts that move them named, since residence and the departure date are each decided case by case.

Situation	What Canada generally does	What the US generally does
A. Spouse and dependants stay in Canada indefinitely, no separation, you have a US job and a US home	The stay-behind spouse is usually a significant residential tie, and someone who hasn’t severed all significant ties generally stays a factual resident taxed on worldwide income; residence is decided case by case	No joint return may be made for a year in which either spouse was a nonresident alien at any time, which generally leaves married filing separately unless you both elect or head of household applies
B. Spouse stays a few months to sell the house or finish a school year, then follows	The departure date usually coincides with the latest of your leaving, their leaving, and your becoming a resident where you moved, so the Canadian return generally runs past your own flight date; the date is a question of fact, and row C is the exception that reverses it	Unchanged from row A for the whole tax year, since the joint-return bar is annual: it asks whether your spouse was a nonresident alien at any time in the year, so a few months is enough to remove the joint return for all of it
C. Same as row B, except you were resident in the US before coming to Canada and you’re going back to re-establish residence there	Where you were resident in the country you are returning to before you entered Canada and are leaving to re-establish residence there, the folio’s exception generally makes you a non-resident on the day you leave, even where your spouse stays behind to sell the home or let a school year finish	Unchanged from row A, since what drives the US filing status is your spouse’s nonresident-alien status rather than the Canadian date
D. Spouse stays in Canada and you were living separate and apart because of a marriage or partnership breakdown that predates your departure	That spouse isn’t a significant tie, so the analysis generally runs on your other ties; residence is still decided case by case on all the facts	The marital question changes, and the head-of-household route can matter more here; the filing-status consequences of a separation sit outside what this page sources and belong to advice
E. Spouse stays in Canada and you both make the section 6013(g) election	Canada files per person either way: a US election creates no Canadian joint return, and your spouse’s own Canadian filing duty runs on ITA 150(1) and the subsection (1.1) exception on their own facts; the Canadian and treaty side of a US election is fact-specific and worth advice	Both of you report worldwide income for the year of the choice and every later year it’s in effect, and if it ends, those two people can never elect again. US information reporting for your spouse is a further consequence this page does not price. Whether it’s worth making is a numbers exercise on your own figures

What should I do next?

Write down two dates and one status before you file anything. The dates are the day you physically left Canada and the day your spouse and dependants left, since the Canadian departure date generally keys to the later of those and to when you became a resident where you moved. The status is whether your spouse was a nonresident alien at any point in the US tax year, since that governs the joint-return question. Then check the re-establishing-residence exception, because it can move the Canadian date back to your own flight.

This guide is general information, not tax advice for your specific situation. Which points apply, and how, depends on your facts.