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Nothing But Confusion: Is it Also Time to Update Sections 85 And 86 of the Substitute Decisions Act?

Overview

Aside from the limitations and restrictions we presently face due to the COVID-19 pandemic, the world is becoming increasingly accessible. In this modern age, it is commonplace for citizens of this province to hold property in foreign jurisdictions and split their time between Ontario and those jurisdictions.  Some head south for the winter while others relocate on a more permanent basis. This is especially prevalent among the elderly in our society.

With this drastic increase in the mobility of persons and wealth, issues will inevitably arise concerning the validity and recognition of foreign power of attorney documents in Ontario.

The current law only provides a limited response to these issues. In particular, a gap in Ontario’s Substitute Decisions Act[1] poses a problem for those who have chosen to grant power of attorney documents in a foreign jurisdiction to assist with managing their affairs abroad and in Ontario contemporaneously.

Sections 85 of the SDA acknowledges the validity of power of attorney documents made in a foreign jurisdiction. Section 86 of the SDA attempts to establish a mechanism to ‘reseal’ or recognize a court order pertaining to guardianship or the validity of a power of attorney document granted in a foreign jurisdiction. However, on at least one occasion, our court has declined to apply section 86 due to the fact that it is deficient. As discussed further below, this has added a layer of complexity in the context of litigious proceedings concerning the validity of foreign power of attorney documents.

Section 85 of the SDA

Section 85 of the SDA deals with advance directives and care for incapable persons. In particular, this section provides that powers of attorney validly granted in foreign jurisdictions will be recognized as enforceable in Ontario:

85(1) as regards the manner and formalities of executing a continuing power of attorney or power of attorney for personal care, the power of attorney is valid if at the time of its execution it complied with the internal law of the place where,

    • The power of attorney was executed;
    • The grantor was then domiciled; or
    • The grantor then had his or her habitual residence.

The SDA does not, however, afford complete reciprocal enforcement of foreign law relating to Powers of Attorney. The following provision limits the range of enforcement and states:

(4) If, under this section or otherwise, a law in force outside Ontario is to be applied in relation to a continuing power of attorney or a power of attorney for personal care, the following requirements of that law shall be treated, despite any rule of that law to the contrary, as formal requirements only:

    1. Any requirement that special formalities be observed by grantors answering a particular description.
    2. Any requirement that witnesses to the execution of the power of attorney possess certain qualifications.

Section 86 of the SDA

Section 85 of the SDA is problematic in the context of contentious proceedings concerning the validity of power of attorney documents granted in a foreign jurisdiction. When faced with the issue of determining whether or not a power of attorney document conforms to the laws of a foreign jurisdiction it can be difficult to achieve or disputed in the context of the litigious proceedings.

The best evidence in such a scenario would be an Order declaring the power of attorney document to be valid from a court in the jurisdiction where it was granted. Section 86, at least on its face, provides a mechanism to have such an Order resealed or recognized in Ontario as a valid Order. However, as noted above, a gap in the legislation currently prohibits a court in Ontario from recognizing such a foreign Order.

Section 86 of the SDA provides that orders made by a court outside of Ontario appointing a person having duties comparable to those of a guardian of property or guardian of the person may be recognized or “resealed” in Ontario.

In particular, section 86(2) of the SDA 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.”[2]

Section 90(g) of the SDA provides that the Lieutenant Governor in Council may make regulations prescribing jurisdictions for the purpose of section 86. However, no jurisdictions have been prescribed. The result, as evidenced by case law, is that only orders made in other provinces and territories within Canada be can be resealed in Ontario using the mechanism set out in s. 86 of the SDA.

This issue was first addressed in 2013 in Cariello v. Father Michele Perrella[3]. In this case, the court refused to apply section 86 to reseal a guardianship order made in Italy due to a lack of guidance from the province. Specifically, Justice Mesbur stated as follows:

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. 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 to apply to any jurisdiction other than another Canadian province or territory. Section 86 cannot apply.[4]

There is an argument to be made that Cariello was wrongly decided. It seems untenable and cannot be true that a foreign Order can only be resealed if the province has given its approval to the foreign jurisdiction by prescribing it in a regulation. The statute should override the lack of any prescriptions, or else the legislation remains meaningless. This could not have been the intention behind section 86.

Whether right or wrong, the court’s interpretation of section 86 and its outright refusal to apply it serves as a potential deterrent to those in need of such relief. This is on its base a problem if we accept the case above is correctly decided. Though too arguably the inherent jurisdiction of the court could reasonably prevail in live situations.

Saskatchewan’s Adult Guardianship and Co-decision-making Act – A Potential Solution

Section 65.1 of Saskatchewan’s Adult Guardianship and Co-decision-making Act[5] presents a wide-sweeping, comprehensive, and practical solution to the issue we face in Ontario. Section 65.1 of the Act provides as follows:

65.1 Foreign orders

65.1(1) In this section, “foreign order” means an order made by a court outside Saskatchewan that appoints a person to have duties comparable to those of a personal guardian or property guardian with respect to the personal welfare of the adult or with respect to the financial welfare of the adult.

65.1(2) A person who is appointed by a foreign order to have duties comparable to those of a personal guardian or property guardian may apply to the court, in the prescribed form, to have the foreign order resealed.

65.1(3) An applicant for resealing shall:

(a) produce to and deposit with a local registrar of the court the foreign order to be resealed;

(b) pay the prescribed fees;

(c) in the case of an applicant who has duties comparable to those of a property guardian:

(i) provide the local registrar of the court with an accurate inventory of the estate of the adult in Saskatchewan so far as this information has come to the knowledge of the applicant:

(A) stating the income and profits of the estate; and

(B) setting out the assets, debts and credits of the adult; and

(ii) if property in Saskatchewan belonging to the estate is discovered after the filing of an inventory pursuant to subclause (i), provide the local registrar of the court with an accurate inventory of the estate immediately on the property being discovered; and

(iii) verify by affidavit every inventory required pursuant to this clause; and

(d) serve a copy of the application in accordance with section 65.3.

65.1(4) On an application pursuant to subsection (2) and after any hearing that the court considers necessary, if the applicant has complied with subsection (3), the court may order that the foreign order be resealed.

65.1(5) On resealing a foreign order pursuant to subsection (4):

(a) the foreign order:

(i) is of the same force and effect in Saskatchewan as if it were issued by the court;

(ii) is subject to any orders of the court as if the foreign order had been granted in Saskatchewan; and

(iii) is, with respect to the adult who is the subject of the foreign order, subject to appeal and review in the same manner as an order appointing a personal guardian or property guardian; and

(b) without limiting the generality of clause (a), the applicant for resealing may exercise the same powers and is subject to the same duties as a personal guardian or property guardian as if the foreign order were issued by the court, including the duty to provide an annual accounting and a final accounting in accordance with this Act. 

65.1(6) If the court makes an order pursuant to subsection (4), the court shall determine whether it is in the best interests of the adult to require a review of the resealed foreign order and, if a review is required, shall specify the period within which the review is to take place.

65.1(7) For the purposes of this section, a duplicate of a foreign order sealed with the seal of the court outside Saskatchewan that sealed it or a copy of a foreign order certified by or under the direction of the court outside Saskatchewan that granted it has the same effect as the original foreign order.

65.1(8) The court may not reseal a foreign order pursuant to this section until the registrar, clerk or other officer of the court outside Saskatchewan that issued the foreign order has issued a certificate to the effect that the foreign order is wholly unrevoked and of full effect.

Rather than proposing a laundry list of ‘prescribed jurisdictions’, the Act contains broad language that accommodates orders made in any foreign jurisdiction that pertain to guardianships and powers of attorney. This avoids the inevitable issue of failing to capture a particular foreign jurisdiction while providing a comprehensive process to verify the validity and applicability of the order.

Furthermore, sections 65.2 and 65.3 of the Act impose further obligations on the person(s) seeking to have a foreign order resealed. These sections afford an added layer of protection for those vulnerable people who are the subject matter of such orders and power of attorney documents. Sections 65.2 and 65.3 of the Act provide as follows:

65.2 Security required on resealing foreign order

65.2(1) Subject to subsection (4), if the court makes an order pursuant to subsection 65.1(4) and the order is with respect to the appointment as a property guardian, the court may require the person who is to act as property guardian to file a bond, in the prescribed form, with the local registrar of the court, undertaking to properly act as property guardian for the adult, with any sureties that the court may require.

65.2(2) If the court requires a bond to be filed pursuant to subsection (1), the court shall determine the amount of the bond.

65.2(3) The court may direct that more than one bond be given in order to limit the liability of a surety to an amount that the court considers reasonable.

65.2(4) No bond is to be required pursuant to subsection (1) if:

(a) a certificate of the registrar, clerk or other officer of the court outside Saskatchewan that issued the foreign order is filed, stating that security has been given in that court in an amount that is sufficient to cover the assets within the jurisdiction of that court and the assets within Saskatchewan; or

(b) the value of the adult’s estate does not exceed the prescribed amount.

65.3 Service of application to reseal a foreign order

65.3(1) A copy of an application to reseal a foreign order pursuant to section 65.1 must be served on:

(a) the adult;

(b) the nearest relatives within the meaning of section 5, except any nearest relative who has consented in the prescribed form to the order requested in the application;

(c) the member of the Executive Council responsible for the administration of The Child and Family Services Act if the adult is receiving services pursuant to section 10 or 56 of The Child and Family Services Act;

(d) the personal decision-maker in Saskatchewan of the adult;

(e) the property decision-maker in Saskatchewan of the adult;

(f) any attorney under a power of attorney given by the adult, if known;

(g) any proxy under a health care directive made by the adult, if known;

(h) any supporter nominated by the adult pursuant to section 9 of The Personal Care Homes Regulations, 1996, if known;

(i) any person who acts as a trustee for the purpose of administering financial benefits on behalf of the adult, if known; and

(j) the public guardian and trustee.

65.3(2) Nothing in subsection (1) requires a person to conduct a search for any person mentioned in clauses (1)(f) to (i) if the existence of that person is not known.

65.3(3) If the court considers it appropriate to do so, the court may dispense with service on all or any of the persons mentioned in clauses (1)(a) to (i).

Conclusion

The Province has the ability to prescribe jurisdictions in accordance with section 90(g) of the SDA. The fact that it has not done so has resulted in at least one decision wherein the court declined to apply section 86. This decision may have since deterred legal practitioners and the like from seeking relief under this section – hopefully not.

Issues that require the assistance of sections 85 and 86 are becoming more prevalent and as such, the legislation is in need of reform so as to clarify the mechanism afforded under sections 85 and 86. Either the Province must prescribe jurisdictions for the purpose of section 86 or provide some form of guidance to assist the court in its application in the absence of same. Alternatively, section 86 could be repealed and replaced with a cogent mechanism that will permit our courts to properly recognized foreign power of attorney documents and orders while protecting the vulnerable members of our society.

[1] Substitute Decisions Act, 1992, SO 1992, c30 [SDA].

[2] SDA, s. 86(2) (emphasis added).

[3] Cariello v. Father Michele Perrella, 2013 ONSC 7605 [Cariello].

[4] Ibid at para 48.

[5] The Adult Guardianship and Co-decision-making Act, SS 2000, c A-5.3 (the “Act”).

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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