By Kayleigh Pink, Associate Research Lawyer,
Lam Family Law*

The ownership of a Registered Education Savings Plan (“RESP”) is relevant in family law disputes, as it impacts whether the funds should be included in a party’s net family property for equalization purposes.

As such, the question often arises: is an RESP the property of the subscriber(s) or is it held in trust for a beneficiary? Until recently, family law jurisprudence had provided inconsistent answers to this question: see Labatte v. Labatte, 2022 ONSC 4787 (CanLII), at para 44.

The Court of Appeal for Ontario (“ONCA”) in Lau v. Tao, 2025 ONCA 819 (CanLII), recently agreed with Justice Faieta’s conclusion in Labatte v. Labatte, 2022 ONSC 4787 (CanLII), “that RESPs should, as a general rule, be regarded as the property of the subscriber”: Lau v. Tao, 2025 ONCA 819 (CanLII), at para 12(v) [underlining added; referring to Labatte v. Labatte as L. v. L.].

Labatte v. Labatte was actually not a case about whether an RESP should be included in a party’s net family property for equalization purposes. It was about the administration of an RESP and eventual disbursal of the funds. However, the court nevertheless needed to determine who owned the account. The Superior Court of Justice in Lau v. Tao applied the analysis in the context of equalization, with subsequent agreement from the ONCA.

A review of these two cases, Labatte v. Labatte (2022) and Lau v. Tao (2025), is helpful in understanding why RESPs are generally regarded as the property of the subscriber and when exceptions may apply.

Labatte v. Labatte

The parties had a marriage contract. At some point during their marriage, the parties opened an RESP to save for the post-secondary education of their daughters. The establishment of the RESP was not contemplated by the marriage contract: Labatte v. Labatte, 2022 ONSC 4787 (CanLII), at paras 9-12.

After separation, the parties signed a partial separation agreement (“PSA”), which addressed RESPs, including clause 8.4, which stated: “The RESPs maintained by the parties shall be used for the children’s postsecondary education.”: para 13 [underlining added by the court].

Subsequently, the father sought an order that the RESP be split such that each party would become the sole subscriber of their own RESP. The court dismissed the father’s motion to split the RESP, as it was not satisfied that the court had the legal authority to make such an order: paras 38 & 42.

Given the high conflict nature of the proceeding, the mother sought an order that the RESP agreement be amended to provide that she be the sole subscriber of the RESP or, alternatively, that she have sole carriage over the RESP and sole authority to disburse its funds for the purposes of the children’s post-secondary education expenses: paras 31 & 43.

In support of her motion, the mother submitted that the RESP was not the property of its subscribers and must be held in trust for the education of the beneficiary children. In contrast, the father submitted that the RESP was property owned by the parties in proportion to their contributions: para 43.

In reaching the conclusion that RESPs are generally the property of the subscriber/party and not the child, Justice Faieta considered the features of an RESP (para 45); that in bankruptcy proceedings, an RESP has been found to be the property of the bankrupt subscriber (para 46); that the Income Tax Act permits a subscriber to, at any time, obtain a refund of their contributions from the promoter (para 50); and that a subscriber has the right to change beneficiaries (para 50).

Justice Faieta also noted that the definition of “subscriber” under s. 146.1(1) of the Income Tax Act “appears to contemplate that an RESP may be considered to be the property of a subscriber.”: para 51.

That being said, Justice Faieta confirmed that an RESP will not be the property of the subscriber where the court concludes that the RESP is being held in trust for the beneficiary. In other words, an RESP is not the property of the party where a valid trust is established: para 52.

The creation of a valid trust requires proof of three elements: certainty of intention to create a trust; certainty of subject matter; and certainty of objects: para 52, citing Corvello v. Colluci, 2022 ONCA 159 (CanLII), para 7.

In this case, Justice Faieta found that the three certainties required to create a valid trust were established by the language in the parties’ PSA. As noted above, the PSA stated: “The RESPs maintained by the parties shall be used for the children’s postsecondary education”: para 55 [italics added by the court]. Based on this language, the court held that:

  • (1) the use of the word “shall” established a legal, rather than a moral, obligation that the RESP be used for the beneficiaries;
  • (2) the subject-matter or property of the trust was certain given the reference to “the RESPs maintained by the parties” and thus included the CIBC RESP; and
  • (3) the objects of the trust were certain in that the “children” were identified as the beneficiaries: para 56.

Thus, the court granted the mother sole carriage over the RESP and sole authority to disperse funds for the purpose of the children’s education. The mother would be required to account to the father for any withdrawals that she made from the RESP within 14 days of any withdrawal: para 58.

Lau v. Tao

The issue of how to treat RESPs often comes up in the context of equalization. If an RESP is the property of a party, then it is subject to equalization. However, if an RESP is being held in trust for a beneficiary, then it is not subject to equalization.

In Lau v. Tao (2025), the mother owned an RESP for the younger child in the amount of $526 on the date of separation, and the father owned an RESP for the older child in the amount of $5,880. The mother asked that the value of these two accounts be equalized. The father disagreed, claiming that each should keep their respective RESP account for the benefit of the named child, and that the accounts should not be included in their respective net family properties: Lau v. Tao, 2025 ONSC 157 (CanLII), at paras 214-217.

The court followed Labatte v. Labatte (2022). Since neither party provided evidence nor argued that the three certainties required to prove a trust were present, the court found that the RESPs were the property of the parties and ought to be included in the calculation of their net family properties: paras 218-222.

The ONCA found no error in the trial judge’s approach and agreed with Justice Faieta’s conclusions in Labatte v. Labatte “that RESPs should, as a general rule, be regarded as the property of the subscriber, since the subscriber retains significant control over the RESP assets, including the right to withdraw the amounts that they contributed or change the beneficiaries”: Lau v. Tao, 2025 ONCA 819 (CanLII), at para 12(v) [referring to Labatte v. Labatte as L. v. L.].

Practical Take-Aways

If a party has an RESP, it will by default be considered the property of the subscriber and, thus, will be included in a party’s net family property.

If a party opposes an RESP being included in their net family property, they must establish that the RESP is a valid trust.

*with thanks to Rebecca Winninger for her suggestions and edits.

This blog is informational only and should not be relied on as legal advice.