Foreign guardianship orders need action

The Ontario legislature is failing in its responsibility to designate prescribed jurisdictions from which courts may recognize guardianship orders made outside of Canada.

The Ontario legislature is failing in its responsibility to designate prescribed jurisdictions from which courts may recognize guardianship orders made outside of Canada.

Although s. 86 of the Substitute Decisions Act, 1992 provides a mechanism by which orders made by a court outside of Ontario appointing a guardian of property or of the person may be recognized or “resealed” in Ontario, the province has yet to prescribe any other country as a “prescribed jurisdiction” for the purpose of s. 86(2). The result is that only guardianship orders made in other provinces and territories within Canada can be resealed in Ontario using the mechanism set out in s. 86 of the SDA. Orders made outside of Canada cannot benefit from the same mechanism.

Resealing is a process whereby a jurisdiction recognizes or ‘reseals’ an order made in a different jurisdiction. The resealed order is then enforceable in the recognizing jurisdiction. In the context of guardianship orders, this process occurs when an incapable person residing outside of Ontario has assets in Ontario, and serves to allow a guardian appointed outside of Ontario to have access to the assets of the incapable person in Ontario. It does so by applying the provisions of the SDA to the now recognized guardianship.

The SDA specifically provides that, “Any person may apply to the court for an order resealing a foreign order that was made in a province or territory of Canada or in a prescribed jurisdiction”. It was clearly intended that certain jurisdictions should be designated as prescribed jurisdictions. But, it does not list the “prescribed jurisdiction” whose orders may be resealed using the SDA’s mechanism. This was left to the Ontario legislature to do by way of regulations.  The Ontario legislature has yet to take action to create the list of countries whose orders can be recognized in Ontario using this section. This leaves Ontario judges with little to no guidance on how to effectively apply s. 86 of the SDA when presented with orders made outside of Canada.

When faced with this exact issue in Cariello v. Father Michele Perrella, 2013 ONSC 7605, the court refused to apply section 86 to reseal a guardianship order made in Italy due to a lack of guidance from the province.

In the ruling, Justice Ruth Mesbur stated, “It seems to me that unless and until Ontario creates a list of ‘prescribed jurisdictions’ there is simply no legislative basis on which I can apply s. 86.”

“This is not a case where the statute inadvertently fails to deal with an issue. Here, the province has simply failed to take the regulatory steps necessary to create a list of prescribed jurisdictions to which s. 86 would apply,” said the ruling.

“I have no idea of the province’s intentions in that regard. I fail to see how I can simply assume Ontario would designate Italy as a prescribed jurisdiction when it finally creates a list of prescribed jurisdictions under the SDA. I have no basis to conclude that Ontario has any intention of having s. 86 apply to any jurisdiction other than another Canadian province or territory. Section 86 cannot apply.”

In light of the Cariello decision, it appears that s. 86 and the mechanism it provides cannot be used to reseal an order made by a jurisdiction outside of Canada. Without action from the provincial legislature, s. 86 will continue to be an ineffective mechanism of the SDA with respect to orders made outside of Canada.

What, then, is a guardian appointed outside of Canada to do if the incapable has assets in Canada that need to be accessed? Can the court reseal a foreign guardianship order in the absence of a list of prescribed jurisdictions?  Until the legislature creates a list of prescribed jurisdictions, there are two ways in which this could be addressed.

The first is to bring an application to have the guardianship order recognized as a non-monetary order, pursuant to the Supreme Court of Canada’s decisions of Morguard Investments Ltd. v. De Savoye, [1990] 3 SCR 1077 (SCC), Beals v. Saldanha, [2003] 3 SCR 416, 2003 SCC 72, and Pro Swing Inc. v. Elta Golf Inc., [2006] 2 SCR 612, 2006 SCC 52.

As of now, there is no decision that applied the SCC’s test of real and substantial connection in the context of a guardianship order. It remains to be seen whether an Ontario court would be open to recognizing a guardianship order on that basis and what the Office of the Public Guardian and Trustee’s position will be on such an application.

The second option is to commence a new guardianship application in Ontario. The evidence of incapacity in the foreign jurisdiction may be useful in such an application, but it would, most likely, need to be updated to reflect the current status of the incapable and to demonstrate his or her incapacity. The “new” guardianship application will need to conform to Ontario’s requirements under the SDA, including the filing of a management plan, service on required persons, and naming of specific respondents in the notice of application. 

While these are potential options for guardians who need to access assets in Canada under the existing legislation, the simplest and most efficient scenario is for the Ontario legislature to take action and recognize the problem Mesbur pointed out in the Cariello decision. Specifying a complete list of countries that would be recognized as prescribed jurisdictions for the purpose of s. 86 is a step that is long overdue in Ontario when it comes to the resealing of foreign guardianship orders.

Yasmin M. Vinograd is a partner at Merovitz Potechin LLP in Ottawa, practising as a litigator with a focus on estate and commercial litigation.

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