You and your partner separate. What about the RESPs that you have accumulated during the relationship for the children? Commonly parents dispute who may and how to administer RESPs on relationship breakdowns. Often one co-trustee believes he or she should be responsible for the RESPs solely, without the involvement of the other.
An RESP is, effectively, a trust fund. Like other trusts, it is possible for one of the parent co-trustees to remove the other, legally. The parents hold the trust fund, as co-trustees, for the benefit of the beneficiaries, the children. So long as the RESP is properly established, specific trust-related legal documentation is not generally required. Each parent is held to a higher standard, as a trustee, and is a fiduciary to the children as the trustee of their trust funds. Therefore, if a parent acts inappropriately, the parent at fault may not only be removed, but be subject to a breach of fiduciary claim, too.
If the parents/trustees cannot co-operate to administer the trust fund together, one can seek the removal of the other as a co-trustee and, if the grounds to do so are proved, the Court will likely remove one of the parents. The Court will apply the traditional legal test and factors for any co-trustee seeking the removal of another co-trustee, as sometimes arises in other types of trust arrangements, like estates.
The recent case in Ontario about this: McConnell v. McConnell (2015 ONSC 2243, CarswellOnt 4939).
This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.
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