Co-authored by Kimberly Whaley, Bryan Gilmartin, and Henry Howe 

This is an abridged version of the full paper. Link to the full paper in PDF format: https://welpartners.com/resources/WEL-2021-Powers-of-Attorney-Jurisdictional-Issues.pdf

INTRODUCTION

As people and their assets have become more mobile in recent years, the need for interjurisdictional approaches to substitute decision-making has increased. Many people own property in more than one jurisdiction. Some travel frequently between jurisdictions, spending part of each year in one and the rest in another. Others have more permanently moved in the course of their lives, but continue to maintain strong connections to the places they moved from. These situations are especially common among the elderly.

It is therefore necessary that laws governing powers of attorney (“POAs”), guardianship, and other substitute decision-making mechanisms adapt to an increasingly globalized world. Ontario’s government has taken steps to address this need in sections 85 and 86 of the Substitute Decisions Act (the “SDA”)^[1] which address the recognition of foreign POAs and guardianship orders. However, as demonstrated in the case of Cariello v Father Michele Perrella,^[2] there remain gaps in the legislation that can severely limit its usefulness.

Without updated legal mechanisms, incapable people and their substitute decision-makers might encounter various practical issues. While foreign powers of attorney are relatively easily recognized in Ontario, the difficulty of having any guardianship order from outside of Canada recognized could create confusion, uncertainty, and barriers to any action to meet an incapable person’s needs. Attorneys and guardians are deeply involved in nearly all aspects of an incapable person’s life, including property, personal finance, and healthcare decisions. A bank might refuse to act on a foreign POA for property if it is not satisfied that the POA is recognized in Ontario, and an incapable grantor might have no recourse in this situation without a court order. Absent any recognized guardian of the person or attorney for personal care, a healthcare provider might turn to a different substitute decision-maker under the terms of the Health Care Consent Act,^[3] despite a substitute decision-maker having already been chosen by the incapable person or a court.

There are various ways in which the legislative gaps could be addressed by the government. A simple regulation could at least partially resolve the immediate problem with section 86, though not the underlying flaws of Ontario’s current approach to choosing which foreign guardianship orders to recognize. Other provinces and territories have developed different legislative methods of dealing with foreign POAs and guardianship orders, and Ontario could use one of these or its own Rules of Civil Procedure^[4] as a model for legislative amendments. There may also be some relief available to parties affected by the current legislative flaws under the rules of private international law, though this approach does not appear to have been tested yet, and is not certain to offer any relief at all.

SECTIONS 85 AND 86 OF THE Substitute Decisions Act

Section 85 of the SDA governs the recognition of foreign POAs. Section 86 governs the resealing of foreign court orders with respect to guardianships or like duties under S.86(1), which is the process by which those orders can be officially recognized and enforced by the Ontario court. For the purposes of these sections, a “foreign POA” or “foreign order” is one that was made in any jurisdiction outside of Ontario, which includes any other province or territory of Canada.

Section 85

Section 85 provides that a POA is considered validly executed if, at the time of its execution, it “complied with the internal law,” excluding choice of law rules,^[5] of any of the following places:

• The place where the POA was executed
• The place where the grantor was then domiciled; or
• The place where the grantor had their habitual residence.^[6]

In other words, a POA is valid in Ontario if it was validly executed in either the jurisdiction where it was executed or the jurisdiction where the grantor lives. The same rules also apply to the revocation of a POA.^[7]

Section 85 does not allow for the complete reciprocal enforcement of foreign law with respect to the valid execution of a POA, as it includes the following qualifiers:

(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.[8]

(5) In determining for the purposes of this section whether or not the execution of a continuing power of attorney or power of attorney for personal care conforms to a particular law, regard shall be had to the formal requirements of that law at the time the power of attorney was executed, but account shall be taken of an alteration of law affecting powers of attorney executed at that time if the alteration enables the power of attorney to be treated as properly executed.^[9]

The rules in section 85 apply to both powers of attorney for property and powers of attorney for personal care.^[10]

Section 86

Section 86 applies to any court order from outside of Ontario that:

• appoints a person;
• to have “duties comparable to those of a guardian of property or guardian of the person”; and,
• for another person who is at least 16 years old.^[11]

An order of this nature can, on an application to the court, be resealed if:

• The order was made in another province or territory of Canada; or
• The order was made in any other jurisdiction prescribed by the government of Ontario.^[12]

An application for resealing must include both a copy of the foreign order that either bears the foreign court’s seal or has been certified by some officer of that court, and a certificate stating that the order has not been revoked and is of full effect.^[13] Once an order has been resealed, it has the same effect in Ontario as a guardianship order made under the SDA, and is subject to any SDA provisions or court-imposed conditions with respect to an Ontario guardianship order.^[14]

Subsection 90(g) authorizes the Lieutenant Governor in Council to make a list of prescribed jurisdictions for the purposes of section 86.^[15] Currently, none exist.

Legislative Gap

Although section 85 is a useful and fairly straightforward tool for the recognition of foreign POAs, section 86 appears to be of limited use in addressing contentious guardianship proceedings that involve orders from outside of Canada. The reason for this problem is that the government has so far not prescribed any jurisdiction to which section 86 can be applied by the courts. Section 86 does allow for any guardianship order made in Canada to be resealed, but so far appears to be completely ineffective with respect to an order made anywhere else. Without a list of prescribed jurisdictions, the SDA effectively provides no mechanism at all for the recognition of a non-Canadian order, and the court can effectively only recognize a Canadian order.

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[1] SO 1992, c 30

[2] 2013 ONSC 7605

[3] SO 1996, c 2, Sch A

[4] RRO 1990, reg 194

[5] SO 1992, c 30 at s 85(2)

[6] SO 1992, c 30 at s 85(1)

[7] SO 1992, c 30 at s 85(3)

[8] SO 1992, c 30 at s 85(4)

[9] SO 1992, c 30 at s 85(5)

[10] SO 1992, c 30 at s 85(6)

[11] SO 1992, c 30 at s 86(1)

[12] SO 1992, c 30 at s 86(2)

[13] SO 1992, c 30 at s 86(3)

[14] SO 1992, c 30 at s 86(4)

[15] SO 1992, c 30 at s 90(g)

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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.