In Santella v. Bruneau, the court agreed with The Children’s Lawyer’s position that the minor’s funds be paid to the Accountant of the Superior Court of Justice (“ASCJ”) rather than have the minor’s mother  (“Ms. Santella”) appointed his guardian of property until his 18^th birthday.

The deceased died without a will. He was survived by his wife, Ms. Santella and their young son.  Ms. Santella was appointed the estate trustee of the deceased’s estate and received all of his Ontario assets.  However, the deceased also owned a condominium in Montreal, Quebec. The sale of the condominium required that a litigation guardian and guardian of property be appointed on behalf of the minor beneficiary.

The Children’s Lawyer was appointed the litigation guardian for the minor. The Children’s Lawyer agreed that Ms. Santella should be appointed the guardian of property for her minor son to facilitate the sale of the condominium. However, once the sale proceeds of the Montreal condominium were received, the minor’s share of the funds should be paid into court. Ms. Santella disagreed. She wished to manage her son’s inheritance until he turned 18.

Ms. Santella proposed that she would manage her son’s share of the sales proceeds by investing in GICs and purchasing a Registered Education Savings Plan (“RESP”) on his behalf. The Children’s Lawyer opposed the purchase of a RESP because RESPs are often treated as the asset of the adult subscriber in family law and bankruptcy proceedings.   Additionally, there are other reasons why a beneficiary of a RESP may never receive those funds.

While acknowledging that Ms. Santella was a responsible parent and the decision was not a reflection on her abilities, the court sided with The Children’s Lawyer and ordered that the minor’s share of the sale proceeds of the condominium paid to the ASCJ. The court noted that the conflicting law regarding treatment of RESPs created a risk that the minor would not receive the RESP funds. Further, payment of the funds to the ASCJ meant that Ms. Santella would not have to post a bond or pass her accounts, which would preserve the minor’s assets. Additionally, the court noted that if anything happened to Ms. Santella before her son reached the age of majority, someone else would have to apply to replace her as guardian of property, necessitating further expenses.

A minor beneficiary and assets in multiple provinces complicated the administration of this intestate estate. While the matter was resolved, it required a court application. For more information about the payment of funds into and out of court, read Gillian Fournie’s blog.

Thank you.