When Borders Blur: The Fight to Recognize Foreign Guardianship Order

Case: Fisher v. Danilunas, 2025 ONSC 2061

In an increasingly globalized world, the mobility of individuals and their assets across borders has become commonplace. As people age and require support in managing personal and financial affairs, guardianship arrangements often come into play—frequently originating from jurisdictions outside of Ontario. Yet, Ontario’s legal framework has not kept pace with this reality. Specifically, the Substitute Decisions Act, 1992 (SDA) fails to provide an effective mechanism for recognizing guardianship orders from foreign countries, creating significant legal and practical challenges for caregivers, financial institutions, and incapable individuals alike.

The decision highlights the practical and legal hurdles faced by families and caregivers in managing cross-border guardianship issues, underscoring the pressing need for legislative reform to accommodate the realities of our interconnected world.

Marija Jurate Danilunas resides in England and suffers from Alzheimer’s Dementia and a delusional disorder. On September 12, 2023, the English Court of Protection found her incapable of managing her property and affairs. On September 14, 2023, District Judge Grosse appointed Richard Alexander Fisher and Sally Louise Kinsey as Joint and Several Deputies to manage her property and affairs. The English order was served on Ms. Danilunas within 14 days of issuance, though she was not a party to the proceedings. Ms. Danilunas currently receives care four times daily in England, with an anticipated need for live-in care within one to two years due to her deteriorating condition. She has funds in Ontario banks, which the deputies seek to access to fund her care. The deputies, both lawyers, applied to the Ontario Superior Court of Justice to enforce the English order or, alternatively, to be appointed as guardians under Ontario’s Substitute Decisions Act, 1992. Edward Danilunas, Marija’s brother, lives in Ontario and supports the application. Edward visited Marija in 2023 and observed her struggling with banking and investments, believing she cannot manage independently. The applicants provided an affidavit asserting Ms. Danilunas’ incapacity but offered no medical evidence or detailed reasoning from the English court. Ms. Danilunas was served with the Ontario application materials in England. The Office of the Public Guardian and Trustee of Ontario is a respondent and objected to statutory enforcement of the English order. The application was heard on March 25, 2025, before Justice FL Myers, with a decision issued on April 2, 2025.

The applicants sought recognition and enforcement in Ontario of a foreign (English) court order appointing them as deputies for Marija Jurate Danilunas, an individual deemed incapable of managing her property and affairs due to Alzheimer’s Dementia and a delusional disorder. Alternatively, they requested to be appointed as guardians under Ontario’s Substitute Decisions Act, 1992 (SDA). The goal was to access Ms. Danilunas’ Ontario bank funds to support her care in England.

Legal Issues

The case raises complex questions about the enforcement of foreign capacity orders in Ontario, particularly:

1. Recognition of the English Order: Whether the English Court of Protection order can be enforced at common law in Ontario, given that the SDA does not currently recognize foreign jurisdictions by regulation.
2. Alternative Guardianship: Whether the applicants should be appointed as guardians under the SDA if the foreign order is not enforceable.
3. Standards for Enforcement: The appropriate legal test for recognizing a foreign in rem order (affecting a person’s status) versus an in personam order (e.g., money judgments), including considerations of comity, real and substantial connection, reciprocity, and public policy.

Applicants’ Position

• The applicants argued that the English order should be recognized at common law, relying on principles from cases like Morguard Investments Ltd. v. De Savoye (1990 SCC), which emphasizes a “real and substantial connection” between the parties, issues, and the foreign jurisdiction.
• They submitted evidence from one deputy (a lawyer) asserting Ms. Danilunas’ incapacity and their authority under the English order, supported by Edward Danilunas’ testimony.
• Alternatively, they sought guardianship under the SDA to achieve the same practical outcome.

Respondents’ Position

• Edward Danilunas: Appeared self-represented and supported the application, expressing concern for his sister’s welfare.
• Public Guardian and Trustee (PGT): Objected to statutory enforcement under the SDA, as no foreign jurisdictions are prescribed by regulation. The PGT’s role in further submissions was anticipated but not detailed at this stage.
• Marija Danilunas: Did not participate directly, though she was served with the Ontario application materials.

Court’s Analysis and Findings

Justice Myers did not resolve the application definitively, instead issuing an endorsement identifying unresolved legal questions and inviting further submissions. Key points from the analysis include:

1. Admissibility of the English Order:
   • Under s. 38 of Ontario’s Evidence Act, the English order, bearing the court’s seal, was admissible without further proof of authenticity.
2. Insufficiency of Evidence:
   • The court found the applicants’ evidence—conclusory statements from a deputy about Ms. Danilunas’ incapacity—insufficient to meet Ontario’s standards for guardianship under the SDA. No medical evidence or detailed reasoning from the English court was provided.
   • This raised doubts about whether Ms. Danilunas’ autonomy and integrity were adequately protected under English law, as would be required in Ontario.
3. Statutory Enforcement Under the SDA:
   • The SDA allows recognition of foreign orders only from jurisdictions listed in a regulation, but no such jurisdictions are currently prescribed. The PGT objected to statutory enforcement on this basis.
   • The court speculated that the government’s inaction might reflect a policy requiring foreign representatives to prove incapacity aligns with Ontario standards.
4. Common Law Enforcement:
   • The applicants pivoted to common law enforcement, citing Morguard and its “real and substantial connection” test. However, the court noted that capacity orders are in rem (affecting status), unlike the in personam money judgments in Morguard, complicating the application of this test.
   • Precedents for enforcing foreign capacity orders are scarce, and the court found the submitted case law inadequate to settle the issue.
5. Unanswered Legal Questions:
   • Justice Myers posed seven detailed questions (paras. 23.1–23.7) to guide future submissions, including:
     • Whether Indyka v. Indyka (UK, 1969) and its “real and substantial connection” test applies to SDA recognition, and if more is required (e.g., reciprocity).
     • Whether public policy considerations, such as respect for autonomy under Ontario law and the Charter, should limit enforcement of foreign capacity orders.
     • How to assess foreign law’s similarity to Ontario’s, who bears the burden of proof, and how to protect vulnerable individuals if foreign standards differ significantly.
     • Whether requiring plenary SDA applications for all guardianship claims (ignoring foreign orders) is a viable alternative.
6. Comity and England’s Legal System:
   • The court expressed no inherent distrust of English courts, acknowledging their shared legal heritage with Ontario. However, it emphasized that the principles established must apply universally, including to jurisdictions with potentially divergent views on autonomy and capacity.
7. Procedural Next Steps:
   • The application was not decided. Instead, the court invited the applicants to consult with the PGT and other potential intervenors (e.g., the Office of the Children’s Lawyer, the Estates bar) and schedule a case conference to structure further proceedings.
   • Edward Danilunas’ testimony was accepted as credible, but insufficient alone to resolve the legal issues.

Outcome

• No final order was made. The court deferred its decision pending additional submissions on the legal framework for enforcing foreign in rem capacity orders.
• The applicants were tasked with coordinating with stakeholders to address the court’s questions, ensuring a robust jurisprudential foundation for future rulings.

Significance

• This case highlights a gap in Ontario law regarding the recognition of foreign capacity orders, particularly those affecting personal status (in rem). It underscores tensions between international comity and local protections for autonomy, potentially setting a precedent for how Ontario courts handle such matters moving forward.

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