“Case law provides two different approaches to the nature of an RESP; one view is that it is property and the other is that it is the product of a trust relationship. I will consider the husband’s argument based on both approaches.
In C.S.M. v. W.S.L., 2015 BCPC 252, the court described the nature of an RESP, at para. 17, as follows:
17 The Canada Revenue Agency defines an RESP as a contract between an individual (the subscriber) and a person or organization (the promoter). The subscriber names one or more beneficiaries and the promoter agrees to pay educational assistance payments to the beneficiary who pays income tax on the payments. If the payments are not made to the beneficiary the promoter pays the subscriber. There is a reversionary interest vested in the subscriber.
From this analysis, it may be concluded that the RESP is property and belongs to the parent in whose name it is registered. The exception to this would arise if the other parent can make a trust claim in relation to the RESP.
…
In the Ontario case of McConnell v. McConnell, 2015 ONSC 2243, the court held, at para. 118, that an RESP is not property belonging to or in the possession of either spouse. The RESP is the product of a trust relationship (para. 122). The RESP is a trust fund held by a trustee who is to administer it on behalf of the children who are the beneficiaries (para. 122). Under this analysis, the RESP funds no longer belong to the parent/subscriber but are impressed with a trust in favour of the child/beneficiary. Therefore, the wife is not at liberty under the terms of the trust to withdraw the funds from the RESP to give to the husband. They are to be used for the child’s education. See also Elias v. Elias, 2018 ONSC 3466.”