C.D.G. v. D.J.P.,

C.D.G. v. D.J.P.,

The June 1, 2011 order was ambiguous as to whether the $3,000 had to remain in an in‑trust account or could be placed in an RESP; given that ambiguity the court accepted the respondent's offered remedy rather than ordering reversal. Therefore the funds may remain in the RESP on condition that if the child does not use them for post‑secondary education the funds will go to the child and the respondent will be personally responsible for and indemnify any tax consequences; costs of the application were split with each party to bear their own costs due to mixed success.

Citation
2011 BCSC 1785
Parties
Plaintiff/claimant: C.D.G.; Defendant/respondent: D.J.P.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
1 November 2011
Procedural Posture
Divorce / Family Law Post‑trial Enforcement and Clarification / Post‑trial Applications / in Chambers Oral Reasons
Outcome
Application partially allowed with conditions and clarification; mixed success; parties to bear their own costs
Legal Topics
Division of Trust Funds, Interpretation of Court Orders, RESP Rules and Restrictions, Allocation of Costs, Parental Access / Birthday Arrangements
Source Language
English
Family Law Trusts Tax Jurisdiction Civil Procedure Division of Trust Funds Interpretation of Court Orders RESP Rules and Restrictions Allocation of Costs +1 more

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Parties

C.D.G.

Plaintiff/claimant

D.J.P.

Defendant/respondent

Procedural Posture

Divorce / Family Law Post‑trial Enforcement and Clarification / Post‑trial Applications / in Chambers Oral Reasons

Legal Issues

  1. 1 Whether transfer of $3,000 from an in‑trust account into an RESP breached the June 1, 2011 order
  2. 2 Whether the court has jurisdiction to adjudicate tax consequences arising from the transfer
  3. 3 Whether clarification of the meaning of 'birthday party' in the parties' order is required

Ratio Decidendi

The June 1, 2011 order was ambiguous as to whether the $3,000 had to remain in an in‑trust account or could be placed in an RESP; given that ambiguity the court accepted the respondent's offered remedy rather than ordering reversal. Therefore the funds may remain in the RESP on condition that if the child does not use them for post‑secondary education the funds will go to the child and the respondent will be personally responsible for and indemnify any tax consequences; costs of the application were split with each party to bear their own costs due to mixed success.

Court Disposition

Application partially allowed with conditions and clarification; mixed success; parties to bear their own costs

Orders

  • The $3,000 transferred into the RESP may remain in the RESP but if V does not use the funds for post‑secondary education the funds shall go to V and C.D.G. shall be personally responsible for and shall indemnify for any tax consequences arising from the transfer.
  • Clarified definition of 'birthday party': a party within three weeks of the child's birthday that includes any of (a) a birthday cake, (b) birthday gifts, or (c) the singing of 'happy birthday', and to which any classmates are invited; the non‑entitled parent shall not hold such a party within three weeks of the...