“An R.E.S.P. does not form part of the property of either spouse to be equalized pursuant to section 5 of the Family Law Act. R.E.S.P.’s have generally not been included as property for equalization. Given how broad the definition of property is under section 4 of the Family Law Act, it is quite clear that courts have implicitly recognized the trust relationship in relation to R.E.S.P.’s. If the R.E.S.P. was the property of the party both in title and in beneficial interest, the courts would not have tacitly accepted its exclusion from the net family property calculation. Similarly, if the R.E.S.P. was the property of any one parent without the children having a beneficial interest in it, courts would have more difficulty justifying removing an R.E.S.P. owner from the title of the account. In Shillington v. Lyne, McDermott J. stated:
This is an R.E.S.P. account for the children in Ms. Shillington’s name alone. There was a concern as to whether this account is subject to equalization, as the account would be available to Ms. Shillington to use for the children’s education, which would defer her share of the children’s educational costs in the future. In respect of this issue, Mr. Dunsmuir filed several cases, Widmeyer v. Widmeyer [2007] ONSC 59502 (CanLII) and Savage v. Savage 2007 ONSC 1900 (CanLII). In both of those cases, R.E.S.P.s were found not to be net family property, but the presiding justice ordered that those funds were to be held in trust for the children. I adopt this solution in the present case.”