In the recent decision of Abitbol v. Abitbol,[1] the Court recognised a foreign guardianship order made in Israel, marking a welcome development in the case law.
Background
Abitbol concerned the property of Joseph Abitbol (“Joseph”). Joseph is 82 years of age, presently resides in Israel, and is considered a person under disability. He has a daughter, Vivane Esther Abitbol (“Vivane”), who was the applicant in the Ontario proceeding.[2]
On April 10, 2024, Judge Anat Alfassi of the Israeli court handed down an Order declaring Joseph incapable of managing his property, and appointed Vivane as his guardian of the property (the “Israeli Order”).[3]
The majority of Joseph’s assets are situated in Israel. He does, however, hold various bank and investment accounts in Ontario. As Joseph’s Israeli guardian, Vivane could not access these funds to provide for his ongoing care.[4]
Accordingly, Vivane brought an application in Ontario seeking a re-sealing of the Israeli Order or in the alternative, an Order recognising the Israeli Order as a valid foreign order pursuant to the common law.[5]
Recognition of Foreign Guardianship Orders in Ontario
Legal Principles
Section 86 of the Substitute Decisions Act,[6] 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.[7]
Orders of this nature can be resealed on application to the court if the order was made in another province or territory of Canada, or, if the order was made in any other jurisdiction prescribed by the government of Ontario.[8]
Importantly, section 86 provides that 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.[9] Section 90(g) of the SDA authorizes the Lieutenant Governor in Council of Ontario to make a list of prescribed jurisdictions for the purposes of section 86.[10] However, currently there are no prescribed jurisdictions.
Because of this, section 86 has historically been of limited use in addressing contentious guardianship proceedings which involve orders from outside of Canada.
This position changed with the 2025 decision of Fisher v. Danilunas (“Fisher”),[11] where the Court recognised a foreign guardianship Order made in England. The Honourable Justice Myers noted that foreign guardianship orders—which are orders in rem affecting a person’s status—can be recognized at common law provided the foreign court order is final, was made with a real and substantial connection to the parties and issues, was not obtained by fraud or breach of natural justice, and would not violate Canadian public policy.[12]
Justice Myers found the UK system sufficiently protective, noting the specialized Court of Protection, vetting and approval of deputies (guardians) by regulators, the requirement for personal undertakings mirroring Ontario obligations, and annual accounting requirements.[13]
Analysis in Abitbol
In Abitbol, the court found a real and substantial connection to Israel, noting that Joseph:
- Lived in Israel since 1993;
- The bulk of his assets are in Israel;
- He currently lives in Israel; and
- The original application where the Israeli Order was granted was commenced where he resided (Israel).[14]
The Court further found that there was no evidence before it that the Israel Order was obtained “by fraud or a breach of natural justice”, using the analytical framework used in Fisher. In this regard, the Israeli system mirrored the provisions of the SDA, with guardians having similar duties, filing requirements for management and guardianship plans, and oversight by the Israeli Guardian General with functions similar to Ontario’s Public Guardian and Trustee – providing further oversight through mandatory annual reporting.[15]
For these reasons, the Court recognised the Israeli Order such that Vivane had full authority as Joseph’s guardian to access his funds in Ontario.
Concluding Comments
Abitbol affirms that Ontario courts may recognise foreign guardianship orders at common law where there is a real and substantial connection, procedural fairness, and no conflict with Canadian public policy. For many years, academics and practitioners have highlighted the legislative gap posed by section 86 of the SDA.[16] As such, the decisions in Fisher and Abitbol are welcome developments.
In light of our current global landscape, where cross-jurisdictional ownership of property is common, and with an increasingly aging population, these issues are likely to become more pronounced such that legislative and litigation-based solutions are required.
—
[1] Abitbol v. Abitbol, 2026 ONSC 1636 (“Abitbol”).
[2] Abitbol at paras 3 – 5.
[3] Abitbol at para 4.
[4] Abitbol at para 5.
[5] Abitbol at para 6.
[6] Substitute Decisions Act, 1992, SO 1992, c 30.
[7] Ibid. at section 86(1).
[8] Ibid. at section 86(2).
[9] Ibid. at section 86(4).
[10] Ibid. at section 90(g).
[11] Fisher v. Danilunas, 2025 ONSC 4359.
[12] Ibid. at para 97.
[13] Ibid. at paras 98 – 100.
[14] Abitbol at para 22.
[15] Abitbol at paras 23 – 24.
[16] See Bryan Gilmartin’s paper on the subject – “Recognition of Foreign Guardianship Orders in Ontario: Addressing the Legislative Gap” (WEL Partners) <accessible at: https://welpartners.com/resources/WEL-Foreign-Guardianship-Orders.pdf >.
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Written by: Oliver O'Brien
Posted on: April 30, 2026
Categories: Commentary, WEL Newsletter
In the recent decision of Abitbol v. Abitbol,[1] the Court recognised a foreign guardianship order made in Israel, marking a welcome development in the case law.
Background
Abitbol concerned the property of Joseph Abitbol (“Joseph”). Joseph is 82 years of age, presently resides in Israel, and is considered a person under disability. He has a daughter, Vivane Esther Abitbol (“Vivane”), who was the applicant in the Ontario proceeding.[2]
On April 10, 2024, Judge Anat Alfassi of the Israeli court handed down an Order declaring Joseph incapable of managing his property, and appointed Vivane as his guardian of the property (the “Israeli Order”).[3]
The majority of Joseph’s assets are situated in Israel. He does, however, hold various bank and investment accounts in Ontario. As Joseph’s Israeli guardian, Vivane could not access these funds to provide for his ongoing care.[4]
Accordingly, Vivane brought an application in Ontario seeking a re-sealing of the Israeli Order or in the alternative, an Order recognising the Israeli Order as a valid foreign order pursuant to the common law.[5]
Recognition of Foreign Guardianship Orders in Ontario
Legal Principles
Section 86 of the Substitute Decisions Act,[6] 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.[7]
Orders of this nature can be resealed on application to the court if the order was made in another province or territory of Canada, or, if the order was made in any other jurisdiction prescribed by the government of Ontario.[8]
Importantly, section 86 provides that 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.[9] Section 90(g) of the SDA authorizes the Lieutenant Governor in Council of Ontario to make a list of prescribed jurisdictions for the purposes of section 86.[10] However, currently there are no prescribed jurisdictions.
Because of this, section 86 has historically been of limited use in addressing contentious guardianship proceedings which involve orders from outside of Canada.
This position changed with the 2025 decision of Fisher v. Danilunas (“Fisher”),[11] where the Court recognised a foreign guardianship Order made in England. The Honourable Justice Myers noted that foreign guardianship orders—which are orders in rem affecting a person’s status—can be recognized at common law provided the foreign court order is final, was made with a real and substantial connection to the parties and issues, was not obtained by fraud or breach of natural justice, and would not violate Canadian public policy.[12]
Justice Myers found the UK system sufficiently protective, noting the specialized Court of Protection, vetting and approval of deputies (guardians) by regulators, the requirement for personal undertakings mirroring Ontario obligations, and annual accounting requirements.[13]
Analysis in Abitbol
In Abitbol, the court found a real and substantial connection to Israel, noting that Joseph:
The Court further found that there was no evidence before it that the Israel Order was obtained “by fraud or a breach of natural justice”, using the analytical framework used in Fisher. In this regard, the Israeli system mirrored the provisions of the SDA, with guardians having similar duties, filing requirements for management and guardianship plans, and oversight by the Israeli Guardian General with functions similar to Ontario’s Public Guardian and Trustee – providing further oversight through mandatory annual reporting.[15]
For these reasons, the Court recognised the Israeli Order such that Vivane had full authority as Joseph’s guardian to access his funds in Ontario.
Concluding Comments
Abitbol affirms that Ontario courts may recognise foreign guardianship orders at common law where there is a real and substantial connection, procedural fairness, and no conflict with Canadian public policy. For many years, academics and practitioners have highlighted the legislative gap posed by section 86 of the SDA.[16] As such, the decisions in Fisher and Abitbol are welcome developments.
In light of our current global landscape, where cross-jurisdictional ownership of property is common, and with an increasingly aging population, these issues are likely to become more pronounced such that legislative and litigation-based solutions are required.
—
[1] Abitbol v. Abitbol, 2026 ONSC 1636 (“Abitbol”).
[2] Abitbol at paras 3 – 5.
[3] Abitbol at para 4.
[4] Abitbol at para 5.
[5] Abitbol at para 6.
[6] Substitute Decisions Act, 1992, SO 1992, c 30.
[7] Ibid. at section 86(1).
[8] Ibid. at section 86(2).
[9] Ibid. at section 86(4).
[10] Ibid. at section 90(g).
[11] Fisher v. Danilunas, 2025 ONSC 4359.
[12] Ibid. at para 97.
[13] Ibid. at paras 98 – 100.
[14] Abitbol at para 22.
[15] Abitbol at paras 23 – 24.
[16] See Bryan Gilmartin’s paper on the subject – “Recognition of Foreign Guardianship Orders in Ontario: Addressing the Legislative Gap” (WEL Partners) <accessible at: https://welpartners.com/resources/WEL-Foreign-Guardianship-Orders.pdf >.
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