These days, it is common for people to collect Air Miles, AeroPlan points, or other types of frequent-flyer or loyalty program points (which we will simply call “points” here). Since they are a bonus incentive for credit card use, collecting points is especially popular among those who use credit cards often, or who use them for business expenses. More importantly, points can really add up and become valuable in and of themselves.
Given their popularity, in the context of a separation and divorce the question often arises as to whether and how these kinds of points must be divided between spouses during the usual equalization of their respective Net Family Property.
The short answer is this: if during your marriage you have accumulated points mainly as part of your personal family-related spending or travel, then they are treated like any other matrimonial asset, are generally subject to being divided amongst you and your spouse in the usual way, under the Ontario Family Law regime.
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But things get a little murkier if some or all of the points have accumulated as part of your business or work-related activities. For example, if you have been collecting both business and family-related points on a single card while married, then it becomes challenging for a court to untangle the portion that forms “matrimonial” property to be shared with your spouse as part of your divorce. This is a legal question that is determined according to your particular circumstances.
If however the points are accumulated solely from your business-related travel or spending, or purely for other reasons related to your employment, then the courts may exempt them from the category of matrimonial property you must divide with your spouse. (But in those cases a court may still opt to categorize them as “income” for calculating child or spousal support, since they can be considered as part of your total compensation from employment).
No matter what approach is taken, the mathematical valuation of points can be challenging. In the past, a few Canadian courts have opted to attribute a per-mile or per-kilometer value to them (e.g. 3 or 4 cents per mile) as a reasonable estimate; others have simply applied a ball-park figure in keeping with evidence tendered by both spouses. And certain practical realities can also come into play: if the particular loyalty program charges a fee to have the points transferred from one person to another, then some of the points you have accumulated may actually be wiped out by that fee.
Finally, if you are making the transfer as part of a court order, then the judge may instruct you to complete the transfer immediately, or within a certain number of days of the decision, and will likely add a clause directing you to co-operate and provide any written consent that may be required to get it done. Alternatively, the judge may choose to order that you redeem one-half of the points for the specific purpose (or for the specific purchases) directed by your spouse, again with a certain timeline imposed.
Separation and Divorce can be a difficult and uncertain time. Our team of Toronto family lawyers is dedicated to relentlessly pursue our clients’ interests, and getting exceptional results. Contact us for a consultation.