Can an RESP Be Legally Held in Trust for a Child?
Yes — an Ontario court has confirmed that funds inside a Registered Education Savings Plan can be impressed with an express trust in favour of a child beneficiary. In Grightmire v. Grightmire-Griesbach, 2026 ONSC 3416 (CanLII), the Superior Court of Justice found that all three legal requirements for a valid trust were met, and it ordered the subscriber who had closed the accounts to repay the funds — plus lost growth — to the children.
If you are in a family dispute over who controls an RESP, or you are worried that a co-parent may drain education savings, this decision is directly relevant to your situation.
What Makes an RESP an Express Trust?
An express trust requires three things, often called the “three certainties”: certainty of intention (the person setting up the arrangement clearly meant to create a trust), certainty of subject matter (the property held in trust is identifiable), and certainty of objects (the beneficiaries are identifiable).
In this case, the court found all three certainties were satisfied. The subscriber’s own emails and the act of delivering RESP account statements to the other party were treated as evidence of a clear intention to hold the funds for the children’s education — not as personal savings. The children were clearly identified, and the RESP accounts themselves were the subject matter. Courts have found trusts in similar family contexts before, but this decision reinforces that informal communications like emails can carry significant legal weight.
Was the Trust Claim Filed Too Late Under Ontario’s Limitation Period?
No — the court ruled the claim was filed on time. Ontario’s basic limitation period is two years from the date a person discovers (or reasonably ought to have discovered) their claim. The subscriber argued the clock started running from the moment the RESPs were created.
The court disagreed. It held that the cause of action arose when the subscriber refused to fund the children’s education — that is, when the subscriber first asserted control over the funds in a way that was adverse to the beneficiaries’ interests. Until that point, there was no refusal, no breach, and therefore no claim to discover. This “discoverability” analysis is important: the limitation clock does not automatically start on the day a trust is created.
What Happens When a Subscriber Closes an RESP Without Consent?
Closing an RESP that is subject to a trust obligation is a breach of fiduciary duty. In this case, the subscriber conceded that if the court found a trust existed, the breach of duty followed automatically. The court confirmed the breach and found that the children lost not only the principal that had been diverted but also the investment growth those funds would have generated.
The obligation placed on the subscriber was to restore both the original capital and the growth the funds would have earned — a meaningful financial consequence. This is a strong reminder that a subscriber who unilaterally closes or empties an RESP in a family dispute may face a court order to repay significantly more than the original account balance.
Can a Court Remove a Subscriber and Appoint Someone Else to Manage an RESP?
Yes. The court found that the subscriber had abused their discretion by imposing unreasonable conditions on whether and when the children would receive education funding. Rather than restore control to the original subscriber, the court ordered removal and directed that a neutral third party take over management of the RESPs and any additional investment funds.
The repayment amount was tied to the highest remaining RESP value — a measure designed to ensure the children were not penalized for market fluctuations caused by the subscriber’s conduct. Appointing a neutral subscriber is a practical remedy that courts can use when the person in control of an RESP can no longer be trusted to act in the beneficiaries’ best interests.
How Does This Decision Affect Separated or Divorced Parents?
This ruling has direct implications for separated and divorced parents who share or dispute control over a child’s RESP. If one parent set up an RESP with the clear intention that the funds were for the child’s education, the other parent — or a court — may be able to enforce that intention as a trust, even if the account is held solely in one parent’s name.
Emails, text messages, and the delivery of account statements can all become evidence of trust intention. Parents who are separating should document their agreements about RESPs in writing and consider whether a formal trust declaration or separation agreement clause is appropriate. Our Ontario wills and estates lawyers regularly advise families on how to protect education savings during and after family breakdown.
Practical Takeaways for Parents and Families with RESPs
- Document your intention in writing. If you open an RESP for a child’s education, say so clearly in an email or letter. Courts treat this kind of communication as evidence of trust intention.
- Do not close or withdraw RESP funds unilaterally during a family dispute. If a trust is later found to exist, you may owe the full principal plus lost investment growth.
- The limitation clock starts at refusal, not creation. If a co-parent is withholding education funds, your two-year window likely begins when they first refuse — not years earlier when the account was opened.
- Courts can appoint a neutral third party to manage an RESP if the subscriber is found to have abused their discretion. This is a real remedy available in Ontario.
- Seek legal advice early. Whether you are trying to protect an RESP or enforce rights to one, the facts matter enormously — and so does timing.
UL Lawyers offers a free initial consultation from our Burlington office and works with clients across Ontario on estate and trust disputes, including those involving education savings. If you have questions about an RESP or any trust matter, connect with our wills and estates team to discuss your situation.
This article is automated commentary on a public court decision and is for general information only — not legal advice. Decisions rely on facts unique to each case. If you are affected by a similar issue, contact a lawyer for advice specific to your situation.
FAQ
Frequently asked questions
Yes. An Ontario court confirmed that RESP funds can be held in express trust for a child if the person who set up the account clearly intended the money to benefit the child, the funds are identifiable, and the beneficiary is identifiable. Informal communications like emails can serve as evidence of that intention.
If the RESP is found to be held in trust for the child, closing or draining the account is a breach of fiduciary duty. The subscriber can be ordered to repay not only the original funds but also the investment growth those funds would have earned.
Ontario's basic limitation period is two years, but the clock typically starts when the subscriber refuses to fund the child's education — not when the RESP was first opened. Getting legal advice promptly after a refusal is important to protect your claim.