It is no wonder that, as the world becomes more globally interconnected, cross-border property ownership issues also become more common. Snowbirds, expats, and foreign investors abound in modern Canada. This reality creates new complexity for lawyers and institutions dealing with the property of incapable adults living abroad with foreign Guardians of Property, who are not recognized as having authority to deal with property held in Ontario.
The Ontario Legislature foresaw this problem thirty years ago and included section 86 of the Substitute Decisions Act. Section 86 was designed as a practical mechanism for recognizing foreign guardianship and trusteeship orders. It contemplates that a guardian appointed in a “prescribed jurisdiction” can “reseal” their authority in Ontario without the cost and delay of a new Guardianship Application.
It is a sensible idea. “Prescribed jurisdictions” are those whose legal standards and oversight in guardianship matters mirror Ontario’s. The statute recognizes that incapacity can cross borders, and that court oversight elsewhere should not have to be unnecessarily duplicated here. There is just one problem: more than thirty years after the Act came into force, not a single foreign jurisdiction has been prescribed.
That omission renders the provision useless. Families, financial institutions, and even public guardians have no statutory path to recognition in Ontario. Instead, foreign guardians must rely on judicial creativity, invoking the principles of comity, the enforcement of foreign judgments, or the court’s inherent parens patriae jurisdiction, to facilitate their duties as guardians.
Fisher v. Danilunas, 2025 ONSC 4359, recently dealt with a situation that highlights this gap, and the judicial acrobatics now filling it. The case is a reminder of how our laws can lag behind the times and how judges are often forced to choose between denying a request for reasonable relief or making proverbial silk purses out of legislative sows’ ears.
Judicial Gap-Filling
In Fisher, two deputies appointed by England’s Court of Protection asked the Ontario Superior Court to recognize their authority over the property of an elderly woman with assets in Ontario. The deputies were already managing her affairs in the UK but were unable to access her Ontario bank accounts to pay for her care.
Given that the UK is not a “prescribed jurisdiction” under the Act, section 86 offered no automatic recognition of their authority. The applicants therefore turned to the general law on enforcing foreign judgments in order to have their appointment recognized.
Here enters Justice Myers who, rather than being able to simply recognize the UK as a prescribed jurisdiction and automatically reseal the appointment order, was forced instead to conduct a detailed review of public policy, procedural fairness, the nature of the deputyship order, and the UK appointments process.
Ultimately, the Court accepted that the UK process had provided notice, evidence of incapacity, and continuing supervision by the Public Guardian. There was nothing to offend Ontario’s sense of justice or public policy. On that basis, the Court recognized the deputies’ authority and directed that they could access and manage the woman’s Ontario assets.
Fisher is pragmatic, humane, and consistent with the law of comity. However, it also illuminates how courts are sometimes forced to fill a regulatory vacuum. Without designated jurisdictions under section 86, every case becomes an uncertain, expensive, and time-consuming judicial exercise. This concern is amplified when one remembers that access to these Ontario assets is often necessary to fund the care of the incapable person. The consequence of this delay can be life-altering or even life-ending. Creating barriers, delays and unnecessary expense could not have been the Legislature’s intention in enacting section 86 of the SDA, however, failing to prescribe appropriate jurisdictions in this case is a compelling example of governmental oversight.
Comparing Protections: England’s Court of Protection and Ontario’s SDA:
Fisher implicitly invites a comparison between the UK system and Ontario’s. Both are designed to protect incapable adults while preserving autonomy and transparency. The parallels are striking.
| Feature | England: Court of Protection / Office of the Public Guardian | Ontario: Substitute Decisions Act / Public Guardian and Trustee |
| Appointment process | Deputies are appointed by the Court of Protection after medical evidence and notice to interested parties. The court can limit powers or impose conditions. | Guardians are appointed by the Superior Court or by statute after evidence of incapacity and notice to affected persons. |
| Oversight and reporting | Deputies must file annual accounts and reports with the Office of the Public Guardian, subject to audit and sanction. | Guardians must maintain accounts; formal accounting is typically required every three years. Management Plans must be submitted initially and then amended upon material changes. |
| Scope of authority | The order defines property or welfare powers; major decisions (e.g., sale of home) often require separate approval. | Powers defined by the order or statute; certain transactions (e.g., gifts, investments) require court or PGT approval. |
| Safeguards against abuse | Public Guardian investigates complaints, can suspend or replace deputies, and refers misconduct for prosecution. | Public Guardian and Trustee can investigate, replace, or take over a guardianship in cases of abuse or neglect. |
| Review and variation | Orders are reviewable at any time; interested parties may apply to vary or revoke. | Guardianships are reviewable; parties can seek termination or variation when capacity changes or concerns arise. |
Both regimes share the same legal DNA: judicial appointment, defined powers, fiduciary duties, and continuous oversight by a public authority. The Ontario court in Fisher effectively concluded that the English system met, and in some respects exceeded, Ontario’s own safeguards.
The Case for Prescribing Jurisdictions:
Given the significant overlap between the Ontario and UK systems, and the likely overlap that exists with systems in at least the other Commonwealth realms, the policy rationale for a prescribed list is clear:
- Predictability and access to justice. Families should know in advance whether their foreign guardianship will be honoured. A prescribed list would allow counsel and financial institutions to act confidently without separate court applications.
- Efficiency for courts and the Public Guardian and Trustee. Recognition by resealing would save judicial time and reduce the need for case-by-case inquiries.
- Protection against weak regimes. The regulation-making power allows Ontario to list only jurisdictions that meet its standards, preserving safeguards while facilitating mobility.
- Economic and social reality. Canadians increasingly hold assets and spend retirement years abroad. Cross-border incapacity issues are no longer rare.
In practice, Ontario could begin modestly: prescribe the UK and perhaps a few comparable Commonwealth jurisdictions with well-established deputyship systems. Each could be reviewed periodically to ensure continued equivalence. With time, other jurisdictions may be added where adequate procedural protections are built into those systems.
From Comity to Clarity:
Fisher shows that Ontario courts are willing to act pragmatically when fairness demands it. However, judicial improvisation should not be the long-term solution. Section 86 was enacted precisely to avoid the judicial burden Fisher illustrates.
By activating that section through regulation, the government could transform a dormant statute into a living tool. It would spare families the cost of cross-border motions, give banks and trust companies a clear compliance path, and align Ontario’s law with the global reality of modern estates.
Until then, courts will continue to do what they can through comity. But real clarity will come only when section 86 fulfills the purpose the Legislature gave it three decades ago.