CITATION: Grightmire v. Grightmire-Griesbach, 2026 ONSC 3416
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LEX GRIGHTMIRE, ISABELLA GRIGHTMIRE and LEAH GRIGHTMIRE, minors, by their litigation guardian, Ryan Grightmire, and XAVIER GRIGHTMIRE, Applicants
AND:
TRACEY LEE GRIGHTMIRE-GRIESBACH in her personal capacity and in her capacity as trustee, Respondent
BEFORE: Justice Jaye Hooper
COUNSEL: David P. Gould, Counsel for the Applicants
Jonathan Collings, Counsel for the Respondent
HEARD: April 27, 2026
Reasons for decision on Application
1The Applicants, Lex Grightmire, Isabella Grightmire, Leah Grightmire and Xavier Grightmire, are the great-grandchildren of the late Hugh Frederick Grightmire.1
2In 2017, $200,000 of Hugh’s money was transferred into four Registered Education Savings Plans (RESPs), providing $50,000 to each applicant for their post-secondary education. The Respondent, Tracey Lee Grightmire-Griesbach, is Hugh’s daughter and the Applicants’ great-aunt. When the RESPs were established, Tracey was named subscriber and managed the funds.
3Hugh passed away in 2023.
4Xavier is the oldest and was the first great-grandchild who needed access to his RESP account. He was accepted to the Civil Engineering Technology Program at the Kingston Campus of St. Lawrence College for the Fall of 2024. As will be set out below, when Xavier’s parents contacted Tracey to release funds to assist with the tuition and educational expenses, Tracey refused until certain conditions were met. When those conditions were not met to her satisfaction by October 2024, Tracey took the position that Xavier had forfeited his claim to this money for that year. Tracey has since closed Xavier’s RESP and transferred the funds to herself. She has also closed a second RESP with Lex as beneficiary.
5The Applicants seek an order that the funds that had been held in the RESPs with Xavier and Lex as beneficiaries, and the remaining two RESP accounts with Leah and Isabella as beneficiaries, be impressed with a trust to their benefit and use should they pursue post-secondary education. The Applicants also seek an order that Tracey repay the amounts taken from the two closed RESP accounts, that she be removed as subscriber, and that the Applicants’ father be placed in that role.
6Tracey opposes this application on the basis that she is the legal owner of the originating funds, the funds were gratuitous, and she is therefore able to take whatever steps she sees fit in managing these RESP accounts, including closing them. She rejects that these funds are impressed with a trust.
7For the reasons that follow, I am granting the Application save and except the order placing the Applicants’ father in the role as subscriber and trustee. I believe a neutral individual would be best in that role. I also decline to grant a tracing order at this time. If Tracey does not repay the amount of the two RESP accounts she has closed, the Applicants can seek a tracing order before me during a contempt motion.
Issues before the court
8The following issues are before the court on this application:
a. Were the funds deposited in the four RESP accounts impressed with a trust in favour of the Applicants?
b. Is this claim statutorily barred?
c. If the court finds a trust, has Tracey breached her fiduciary duty as trustee?
d. If Tracey breached her fiduciary duty, what amount should she repay for the two closed RESPs?
e. Should Tracey be removed as subscriber on the RESP accounts?
f. Should a tracing order be made for the funds Tracey diverted to herself when she closed the RESP accounts?
Issue One: Were the funds deposited in the RESP accounts impressed with a trust?
9An RESP in and of itself is not impressed with a trust without more: Labatte v. Labatte, 2022 ONSC 4787 They have been held to be the property of the subscriber until the subscriber directs the payment to the beneficiary: Vetrici v. Vetrici, 2015 BCCA 146 at para. 36.
10There are circumstances, however, when an RESP can be impressed with a trust: McConnell v. McConnell, 2015 ONSC 2243 at para. 122. To establish an express trust, there must be three certainties: certainty of intention, certainty of subject matter, and certainty of objects: D.M.W. Waters, Law of Trusts in Canada, 2nd ed. (Toronto: Carswell, 1984), at 107.
Was there certainty of intention?
11Hugh Grightmire was a very wealthy individual with considerable investment holdings. When he died in 2023, his estate was worth approximately $20,000,000.
12In 2015, Hugh signed a power of attorney document that allowed his daughter, Tracey, to manage his investments and provide instructions directly to RBC on his behalf in order to assist him in his later years. Despite this authorization, Hugh remained actively involved in overseeing his own finances. Records produced in this application show notes and checkmarks on his bank statements that demonstrate Hugh reconciled his own accounts. He also provided instructions to his RBC financial advisors. There is no suggestion that Hugh was incapable of making his own decisions. While Tracey was assisting him, the funds in Hugh’s investment accounts were Hugh’s – not Tracey’s.
13Hugh and Tracey had a joint bank account. There are regular deposits into that account including Hugh’s Canada Pension Plan and an annuity payment from Sun Life (presumably also Hugh’s). From time to time, there are additional lump sum deposits from Hugh’s investments. The bank statements have Hugh’s notations on them as he reconciled this account on a monthly basis.
14In 2017, Tracey authorized $200,000 to be moved from Hugh’s investment account into their joint back account. The funds were deposited into the joint bank account on June 27, 2017. It is conceded that the funds were then transferred to an account held solely by Tracey on June 28, 2017. These are the funds used to make the four $50,000 RESP contributions on June 29, 2017.
15Tracey takes the position that once the $200,000 from Hugh’s investment was deposited into the joint bank account and transferred to her own account, these funds became her money and therefore it was she, not Hugh, who funded the RESP accounts. Her evidence is that she wanted to financially help her great-nephews and great-nieces out of concern that their parents would not be in the financial position to fund their education. She further states that she decided to open these RESPs without her father’s knowledge or permission.
16I do not accept Tracey’s evidence on this point. I find she is recreating history to support the subsequent actions when called upon to release the funds to Xavier. I base this finding on the following:
(a) There is no evidence before the court that Tracey deposited a single dollar of her own money into the joint bank account she held with Hugh. I find it more probable than not that all funds in that account were from Hugh’s investments or any income he may have been earning and therefore Tracey, as power of attorney, was required to use and manage those funds in accordance with Hugh’s wishes.
(b) There is no evidence that Hugh gifted Tracey the $200,000 used for the RESPs.
(c) The evidence supports a finding that it was Hugh, not Tracey, who wanted the RESP accounts established for his four great-grandchildren. Following the opening of these accounts, Hugh attended at the Applicants’ home and provided each of his great-grandchildren with a bank statement showing that an RESP account had been opened in their name. Hugh handwrote the name of each child on the RESP in which they were named as beneficiary.
(d) In 2021, Tracey confirmed the establishment of the RESPs with Hugh’s funds in an email sent to the Applicants’ parents. That email, dated December 1, 2021, stated the following:
Hi
I thought this might make you feel good - I manage 4 RESPs for Ryan's kids. Each has over $80,000 so far (Hugh put in $50k each a couple of years ago). Xavier can go pretty well anywhere he wants for undergrad. Ben has not had to spend that much (although he had 1 year of unexpected living with us due to COVID so that was free ... ). I'm keeping an eye on Xavier's fund from an investment perspective so that he'll have some cash flow when ready.
T.
17Tracey’s explanation for this email is that she misled the Applicants’ parents on the source of funds, saying they were from Hugh rather than her, to make her family members feel less awkward in accepting her help. I reject that explanation. It is entirely inconsistent with Hugh delivering the RESP statements to the Applicants when they were first opened.
18As a result of the above, I find there was certainty of intention by Hugh to create these RESP accounts in favour of each of his great-grandchildren.
Was there certainty of subject matter?
19The money used to fund the RESPs is identifiable. Hugh’s cashed investments of $200,000 were placed in the joint account he held with Tracey on June 27th. Those funds were withdrawn from the joint account and put into Tracey’s own account on June 28th. The same $200,000 was used to open the RESPs on June 29th, 2017.
20While Tracey argues a comingling of funds occurred after the $200,000 was transferred from the joint account to her personal account before the RESPs were opened, she has not produced her bank accounts to prove that comingling and I do not accept her evidence on that issue. Tracey confirmed the funds used to open the RESPs were Hugh’s by email in December 2021.
21I find there was certainty of subject matter.
Was there certainty of objects?
22In my view, the object of the trusts is certain as there were four individual RESPs set up with one of the four great-grandchild identified on each as beneficiary.
Issue Two: Is this claim statute barred?
23The Respondent argues that even if a trust was established, the within application has been brought outside the two year limitation period. In support of this argument, the Respondent relies upon Simko v. Pirner, 2025 ONSC 6397.
24Through questions from the court, the Respondent clarified that the triggering event for this cause of action was the establishment of the RESPs. The Respondent argues that once the Applicants knew of the creation of these RESPs, they were to bring an application to confirm these funds were held in trust.
25I do not read Simko as being applicable to the facts before me. In Simko, the applicant was seeking to establish a resulting trust over money his mother had transferred to his sister before his mother passed away. He brought his claim for a trust more than two years after the transfer. The court found his claim to be statute-barred.
26Here, the funds at issue were placed in RESPs with the Applicants named as beneficiaries. All understood that the funds had been placed in this investment vehicle. There was nothing to litigate about. Had Tracey taken the funds from Hugh and failed to open the RESP accounts, it would have been more aligned with the facts in Simko.
27With the RESPs established, no cause of action arose until Tracey refused to use Xavier’s RESP to assist him in his post-secondary education. It was only then that the Applicants became aware Tracey viewed the funds as her own. Tracey’s email on March 6, 2024 was the earliest notice of an issue. On that date, she wrote that she had sole discretion as to whether to help Xavier with his education costs.
28The Notice of Application was issued on July 23, 2025, well within the two year limitation period.
Issue Three: If the RESP funds are impressed with a trust, did Tracey breach her obligations as a fiduciary?
29In February 13, 2025, the Applicants’ counsel wrote a demand letter to Tracey advising of their intention to commence litigation if this issue was not resolved. Sometime after that demand letter, and for reasons that still remain unclear to the court, Tracey closed two of the RESP accounts in June 2025 and transferred the funds to herself. She did not need the money. She has no explanation for taking this action other than believing that she was the legal owner of the money and could do with it as she pleased.
30Tracey concedes that if the court finds there is a trust, by closing the two RESP accounts and diverting the funds to her own use, Tracey breached her role as a fiduciary.
Issue Four: What amount should Tracey have to repay for the two closed RESP accounts?
31Tracey is a very competent investor. She knew that by closing these RESP accounts, these investment vehicles would lose any future growth opportunity. As previously stated, she has no explanation for her decision to close these accounts during this litigation. She is therefore responsible to repay the principal investment and she must also repay all realized and potential growth up to the date of this decision. As there are two remaining RESPs, their value can be used to quantify damages.
32I note that the value of each of the RESP accounts are slightly different. For quantifying damages, the parties are directed to use whatever RESP account currently has the highest value as of the date of this decision.
33For Xavier’s closed RESP, Tracey will repay the $50,000 original principal for the subscriber to reinvest in an RESP. She will then pay Xavier the amount above $50,000 that matches the highest of the two remaining RESPs.
34For greater clarity – if Leah’s RESP is currently valued at $130,000 and Isabella’s RESP is currently valued at $132,0002, Isabella’s RESP will be used to calculate Tracey’s repayment because it is the highest between the two. Tracey will pay the new subscriber $50,000 to place in an RESP with Xavier as beneficiary and will pay Xavier $82,000 to compensate for the lost investment growth. Xavier is expected to use the $82,000 for education purposes; however, given he is an adult, he is entrusted with the $82,000.
35For Lex’s closed RESP, Tracey will again pay $50,000 to the subscriber and will make the same additional payment she made to Xavier. Unlike Xavier, Lex is not an adult and will not receive this additional amount directly. It will have to be invested on his behalf by the person named as subscriber. Again, that additional investment should be used for Lex’s education.
Issue Five: Should Tracey be removed as subscriber on the RESP accounts and replaced by the Applicants’ father?
36Tracey’s breach of her fiduciary duty is sufficient justification to remove her as subscriber; however, even if she had not closed the RESP accounts, she would have been removed based on the abuse of her discretion in managing the account for Xavier. Examples of this abuse include:
a. She placed conditions on funding that were beyond what was necessary to make withdrawals from the RESP account. For example, Tracey refused to consider covering any expenses until Xavier had provided her with a full budget for the year.
b. After receiving a budget, Tracey continued to refuse to provide Xavier with funding for his tuition despite receiving proof of his acceptance and enrollment in a post-secondary program. Instead, she required Xavier to provide proof of payment of his tuition – tuition he could not afford without the RESP.
c. When Xavier finally did provide proof of payment, Tracey continued to refuse to provide funds from his RESP until he confirmed who had funded the tuition on his behalf.
d. When Xavier did not meet Tracey’s unreasonable demands by October 2024, she declared that he had forfeited his right to any funding for that year.
37As a result of her breach of fiduciary duty and the draconian manner in which she managed Xavier’s RESP account, Tracey will be removed as subscriber from all RESPs.
38The Applicants have suggested their father as the replacement subscriber. In my view, the Applicants’ father is not the appropriate replacement as subscriber for the following reasons:
a. Hugh made the decision not to have the parents as subscribers;
b. These RESP accounts should not be difficult to manage by a neutral party and, therefore, the cost of a neutral party acting as subscriber should not be prohibitive;
c. Given the distrust between the family members, having a neutral third party manage the RESP accounts will prevent any disputes or future challenges on how these funds are managed; and
d. If any of the children choose not to pursue a post-secondary education, the neutral party will have no hesitation in returning the funds to Hugh’s estate trustee for distribution under his will.
39It should be noted that the court does not agree with Tracey’s views of proper educational expenses as expressed in her emails. When considering whether or not to pay an expense during the beneficiary’s post-secondary education, the subscriber will include the following as reasonable expenses:
a. Tuition
b. Books
c. Computer / technology requirements
d. Reasonable living expenses (unless the beneficiary lives at home)
e. A monthly allowance for food/supplies
40The above list is not meant to be exhaustive. Depending on the program, there may be additional reasonable expenses incurred that should be paid.
41The beneficiaries do not have to provide receipts in advance of receiving funding but do have to furnish some documentation to satisfy the subscriber that the expense will be incurred.
42When deciding whether an expense is reasonable, the subscriber is to keep in mind that these funds are meant to prevent or limit the beneficiary from incurring debt during their post-secondary education and should be used accordingly.
Issue Six: Should a tracing order be made for the funds Tracey diverted to herself when she closed the RESP accounts?
43There is no evidence that Tracey is without the financial means to repay the RESPs she cashed in. As a result, a tracing order is premature. If Tracey fails to make the repayment, the court will consider such an order on a contempt motion.
Disposition
44The application is granted.
45The court declares that the $200,000 used to fund four RBC Direct Investing RESP accounts, together with all government grants and investment growth, is impressed with a Trust in favour of the Applicants for their post-secondary education.
46The court orders the following:
a. the removal of Tracey Grightmire-Griesbach as subscriber on account numbers 696-14486-1-7 and 696-14487-1-6.
b. A neutral subscriber will be placed on account numbers 696-14486-1-7 and 696-14487-1-6.
c. Two new RESP accounts will be opened by the neutral subscriber naming Xavier Grightmire as beneficiary on one and Lex Grightmire as beneficiary on the other. $50,000 will be placed in each RESP.
d. Tracey Grightmire-Griesbach will restore the funds misappropriated from the two cashed in RESP account bearing account numbers 696-14485-1-8 and 696-14484-1-9 as set out above in these reasons.
e. Tracey Grightmire-Griesbach will pay all amounts owed within 30 days of a neutral subscriber being appointed.
f. The neutral subscriber will also manage the investment account of the additional payment made to Lex Grightmire.
47If the parties cannot agree on a neutral person to assume this role, further submissions can be made to the court.
48The Applicants are entitled to costs. Cost submissions of no more than three pages (double spaced) excluding Offers to Settle and Bills of Costs will be served and filed by June 17, 2026. The Respondent will have until June 24, 2026 to serve and file submissions with equivalent page restrictions. The deadline for these submissions may be adjusted on consent.
Justice Jaye Hooper
Date: June 09, 2026