In British Columbia, Registered Education Savings Plans, or RESPs, are treated differently from most other assets in a Separation Agreement. This is because RESPs are generally considered funds held in trust for the children’s education, rather than family property to be divided between spouses.

While the Family Law Act governs the division of family property, RESPs are typically excluded from property division because the intended beneficiaries are the children, not the parents.

That said, RESPs still need to be addressed clearly in a Separation Agreement so there is no confusion about how they will be managed and used after separation.

An RESP is usually opened in the name of one parent, called the subscriber. The subscriber controls the account, even though both parents may have contributed to it during the relationship.

Because RESPs are intended for the children’s education, they are generally not divided or equalized between spouses, even if both parents contributed to the account while they were together.

Instead of being treated as a shared asset between spouses, the RESP is treated as a resource for the children that both parents have an interest in protecting.

A Separation Agreement should clearly outline how decisions about the RESP will be made going forward.

In many cases, parents agree to keep the RESP as it is and continue managing it jointly, even if only one parent remains the subscriber.

In other situations, parents may agree to separate responsibility by transferring a portion of the RESP funds into a new RESP account to be managed by the other parent. This allows each parent to manage their own contributions and apply RESP funds toward their share of post-secondary expenses later.

The agreement can specify whether decisions will be made jointly, or whether the subscriber parent will manage the RESP with consultation from the other parent.

The Separation Agreement may also address whether parents will continue contributing to the RESP after separation.

Some agreements set out specific contribution amounts or percentages for each parent. Others allow contributions to remain voluntary, particularly if one parent’s financial circumstances have changed.

If one parent is not able or willing to continue contributing, the agreement can clarify whether that affects how future education costs will be shared.

Clear terms about how RESP funds will be used help prevent future disputes.

Agreements often define what qualifies as an eligible education expense, such as tuition, books, supplies, housing, or transportation.

If there is more than one child, the agreement may also address how RESP funds will be allocated between children to ensure fair access to the funds.

Because RESP withdrawals can only be used for education-related expenses, agreements usually emphasize that the funds are to be used exclusively for the children’s benefit.

In some cases, the subscriber parent may no longer be willing or able to manage the RESP.

A Separation Agreement can address whether the other parent will be added as a joint subscriber or whether responsibility will transfer entirely to the other parent.

It is important to note that changes to RESP subscribers are subject to the rules of the financial institution holding the account and may require their approval.

The subscriber controls RESP withdrawals and is responsible for ensuring funds are used appropriately.

While the subscriber manages the account, the taxable portion of RESP withdrawals is generally taxed in the hands of the student, not the parent. The agreement should still clarify how withdrawals will be coordinated and documented to ensure transparency and proper use.

Clear terms around reporting and communication can help maintain trust and accountability between parents.

Because RESPs exist for the children’s benefit, disputes about their management or use are generally resolved with the children’s educational needs as the priority.

A Separation Agreement can include a dispute resolution process, such as mediation, to address future disagreements about RESP decisions without escalating conflict.