Overview
In the groundbreaking case of Fisher v. Danilunas, 2025 ONSC 4359, the Ontario Superior Court of Justice delivered a precedent-setting decision on the recognition of foreign guardianship orders in Ontario. Our firm had the privilege of acting as an intervenor in this case, representing Coral Wilson in her capacity as Guardian for Gloria Lew, contributing to a ruling that balances the protection of vulnerable individuals with respect for international comity. This case addresses the complex interplay between Ontario’s Substitute Decisions Act, 1992 (SDA), and foreign in rem orders appointing legal representatives for incapacitated persons, setting a significant precedent for cross-jurisdictional estate and capacity law.
The Facts
The case centered on Marija Jurate Danilunas, a resident of England who was found by the UK Court of Protection to lack capacity to manage her property and affairs due to debilitating dementia. On September 12, 2023, the UK court appointed Richard Alexander Fisher and Sally Louise Kinsey as Joint and Several Deputies to manage Ms. Danilunas’s property under the UK’s Mental Capacity Act, 2005. Ms. Danilunas held significant assets in Ontario, including over $1.2 million in cash and cash equivalents in a bank account and pension plan.
The Applicants sought an order from the Ontario Superior Court to recognize the UK order, allowing them to manage Ms. Danilunas’s Ontario assets. Alternatively, they requested an ancillary order to access and use her funds in Ontario to support her care in the UK. The Respondents included Ms. Danilunas, her brother Edward Danilunas, and the Office of the Public Guardian and Trustee (PGT). The PGT and our firm intervened to assist the court in determining whether the UK order should be recognized in Ontario, given the absence of prescribed foreign jurisdictions under s. 86 of the SDA.
The Court’s Analysis
Justice Myers grappled with the tension between two core public policy principles enshrined in Ontario law: the protection of vulnerable persons and the preservation of individual autonomy. The SDA provides robust procedural protections to ensure that incapacity findings are made with due process and that guardians are accountable. The PGT argued that recognizing foreign guardianship orders without adhering to the SDA’s strict requirements could undermine these protections, potentially exposing vulnerable individuals to abuse.
However, the Applicants, supported by Edward Danilunas, contended that requiring a full guardianship application in Ontario would be redundant, given the UK’s rigorous process. The UK Court of Protection, a specialized court with authority akin to the High Court of Justice, had already determined Ms. Danilunas’s incapacity based on psychiatric evidence and appointed vetted Deputies accountable to the UK Public Guardian.
Justice Myers relied heavily on the Supreme Court of Canada’s decision in Pro-Swing Inc. v. Elta Golf Inc., 2006 SCC 52, which expanded the common law recognition of foreign orders beyond in personam money judgments. The court applied the “real and substantial connection” test from Beals v. Saldanha, 2003 SCC 72, and assessed whether the UK order violated Canadian public policy. Unlike in personam debt cases, where public policy defenses are narrowly applied, Pro-Swing allows a broader consideration of public policy for in rem orders, particularly those affecting vulnerable persons.
The court found that the UK process, while not identical to the SDA, provided comparable protections. Ms. Danilunas was served with court process, the incapacity finding was based on expert evidence, and the Deputies were subject to annual accounting and regulatory oversight. The absence of a formal management plan, as required under the SDA, was not deemed a fatal flaw, as the UK Deputies’ obligations mirrored those of Ontario guardians. Critically, there was no evidence suggesting that Ms. Danilunas was at risk of abuse or that her autonomy was unduly compromised.
Justice Myers rejected the PGT’s position that foreign orders should only be recognized through a plenary SDA application or limited ancillary enforcement. He reasoned that an ancillary order to access funds presupposes the validity of the foreign appointment, necessitating full recognition of the UK order. The court also noted that s. 86 of the SDA, which allows “resealing” of foreign orders from prescribed jurisdictions, does not preclude common law recognition, as no foreign jurisdictions are currently prescribed.
Justice Myers disagreed with the PGT’s suggestion that an ancillary order could be granted without recognizing the UK order’s validity. He adopted the Applicants’ argument that “the court cannot use a branch of a tree that arises from a guardianship/deputyship, without recognizing the root from which the guardianship/deputyship grows” ([Page 8, para. 29]). He questioned the legal basis for allowing the UK Deputies to access Ms. Danilunas’s funds (over $1.2 million) if their appointment was not recognized, stating, “if the court does not recognize the validity of the UK Deputies’ appointment as Ms. Danilunas’s legal representatives, then by what legal right does it let them take over $1 million of her money?” ([Page 8, para. 31]).
Significance of the Case
Fisher v. Danilunas is a landmark decision for several reasons:
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Precedent for Common Law Recognition: The case establishes that foreign in rem guardianship orders can be recognized in Ontario under common law principles, even without prescribed jurisdictions under s. 86 of the SDA. This fills a legislative gap and promotes comity in cross-jurisdictional capacity matters.
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Balancing Public Policy: By applying Pro-Swing, the court adopted a flexible approach to public policy, ensuring that foreign orders are scrutinized for compliance with Canadian values, such as protection of the vulnerable and respect for autonomy. This broader public policy lens distinguishes in rem orders from in personam debt judgments.
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Practical Implications: The decision streamlines the management of assets for incapacitated persons with property in multiple jurisdictions. Requiring foreign representatives to undertake full SDA applications would impose unnecessary costs and delays, potentially leaving vulnerable individuals without timely access to their funds.
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Judicial Discretion: The ruling emphasizes judicial discretion to impose conditions on recognized foreign orders, ensuring that courts can address case-specific concerns, such as privacy or potential abuse, as seen in The Bank of Nova Scotia Trust Company v. Pernica, 2020 ONSC 67.
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International Context: The decision aligns Ontario with jurisdictions like the UK, which use checklists (e.g., SV, Re, [2022] EWCOP 52) to assess foreign protective measures. While Canada is not a signatory to The Hague Convention on the International Protection of Adults, this case reflects similar principles of natural justice and protection.
Our firm’s highlighted the need for a principled approach to recognition that safeguards vulnerable individuals while respecting foreign judicial processes. The court’s reference to our submissions, particularly regarding the UK’s SV decision, underscores the value of comparative perspectives in shaping Canadian law.
Conclusion
Fisher v. Danilunas is a pivotal case that advances the recognition of foreign guardianship orders in Ontario, ensuring that vulnerable individuals like Ms. Danilunas can benefit from their assets without undue legal barriers. By affirming the common law’s flexibility and emphasizing public policy considerations, the decision sets a robust framework for future cross-border capacity cases. Our firm is proud to have contributed to this precedent, reinforcing our commitment to protecting the rights and interests of vulnerable persons in complex estate matters.
For further information or assistance with cross-jurisdictional guardianship issues, please contact our guardianship lawyers at 416-847-1859.
