In Abitbol v. Abitbol, 2026 ONSC 1636, the Ontario Superior Court of Justice considered whether a guardianship order issued by an Israeli court could be recognized and given effect in Ontario. The decision applies the common law framework introduced by Myers J. in Fisher v. Danilunas, 2025 ONSC 4359 (“Fisher“), and provides helpful guidance for practitioners seeking to enforce foreign guardianship orders over property located in this province.
Background
The respondent is an incapable person who has resided in Israel since 1993 and holds bank accounts and investments in Ontario. The applicant, the respondent’s daughter, was appointed as the respondent’s guardian of property and personal care by an Israeli court. The applicant’s authority was first established through an interim order in 2023 and was made final by an order issued on April 10, 2024. The applicant brought this application to have the Israeli guardianship order recognized in Ontario in order to access the respondent’s Ontario-based assets to fund his ongoing care needs.
The Statutory Framework
The resealing of foreign guardianship orders is governed by section 86 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”). Section 86 defines a “foreign order” as an order made by a court outside Ontario that appoints, for a person who is sixteen years of age or older, a person having duties comparable to those of a guardian of property or guardian of the person. Under subsection 86(2), 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.
The statutory resealing mechanism is therefore limited to orders from other Canadian provinces or territories, or from jurisdictions prescribed by regulation. However, as noted in Cariello v. Perrella, 2013 ONSC 7605, at para 48, the legislature has not yet prescribed any non-Canadian jurisdictions. As a result, section 86 of the SDA is of limited practical use in addressing guardianship orders from outside Canada.
The Common Law Framework from Fisher
In the absence of a prescribed jurisdiction, the common law principles governing the recognition and enforcement of foreign judgments apply. In Fisher, at para 97, Myers J. articulated four criteria that must be satisfied for a foreign guardianship order to be recognized:
- The foreign order must be final;
- The foreign order must have been made by a court with a real and substantial connection to the parties and the issues;
- The foreign order must not have been obtained by fraud or in breach of natural justice; and
- The foreign order must not violate Canadian public policy.
Application of the Fisher Criteria
The Court in Abitbol found that all four criteria were satisfied.
With respect to the real and substantial connection requirement, the Court noted that the respondent has been an Israeli resident since 1993, that the majority of his assets are located in Israel, and that the guardianship proceedings were commenced in the jurisdiction where the respondent resides. The respondent’s ties to Israel were therefore among the strongest of any jurisdiction.
The Court was also satisfied that the guardianship order was not obtained by fraud or in breach of natural justice.
Finally, on the question of public policy, the Court found that the Israeli guardianship system mirrors that of the Ontario SDA in its oversight, reporting, and supervision requirements. Accordingly, recognizing the foreign order would not violate Canadian public policy.
Key Takeaways
Abitbol confirms that until the legislature prescribes non-Canadian jurisdictions for the purposes of section 86 of the SDA, the recognition of foreign guardianship orders from outside Canada will proceed on a case-by-case basis under the common law criteria established in Fisher. Practitioners seeking to have a foreign guardianship order recognized in Ontario should be prepared to address each of the Fisher factors at the outset of the application.
In particular, applicants should consider whether the foreign order is final and not merely interim in nature; whether the incapable person and the guardianship proceedings have a real and substantial connection to the foreign jurisdiction; whether the process by which the order was obtained was fair and free from fraud; and whether the foreign jurisdiction’s guardianship regime is sufficiently analogous to Ontario’s SDA such that recognition of the order would not offend Canadian public policy. Addressing these considerations at the earliest stage will strengthen the case for recognition and facilitate access to the incapable person’s Ontario-based property.
Conclusion
This decision reaffirms that, in the absence of legislative action, the common law provides a viable pathway for guardians appointed abroad to access an incapable person’s assets in this province, provided the Fisher criteria are met. In a world where it is not uncommon to have assets in multiple jurisdictions, practitioners should be familiar with this framework and prepared to demonstrate, with evidence, that the foreign order satisfies each of the four recognized criteria.