Abitbol v. Abitbol, 2026 ONSC 1636
Cross-Border Incapacity Planning Continues to Evolve
In Abitbol v. Abitbol, the Ontario Superior Court of Justice addressed an increasingly common issue in modern estate and incapacity law:
- what happens when an incapable person lives in another country but still owns assets in Ontario?
The decision is an important development in cross-border guardianship law and confirms that Ontario Courts are prepared to recognize foreign guardianship orders, even where Ontario legislation does not expressly provide a clear procedural framework.
The Facts
Joseph Abitbol, an 82-year-old resident of Israel, had been declared incapable of managing his property by an Israeli Court. His daughter, Vivane Esther Abitbol, was appointed as guardian for both his personal care and property.
While most of Joseph’s assets were located in Israel, he also owned bank accounts and investments in Ontario. Vivane was unable to access those Ontario assets in order to pay for her father’s ongoing care unless Ontario recognized her authority as guardian.
She therefore brought an application in Ontario seeking:
- re-sealing of the Israeli guardianship order; or
- alternatively, recognition of the Israeli order under common law principles.
The Legislative Problem
Section 86 of the Substitute Decisions Act, 1992 permits Ontario courts to “re-seal” foreign guardianship orders. However, the legislation only expressly applies to:
- other Canadian provinces and territories; or
- foreign jurisdictions specifically prescribed by regulation.
The problem is that Ontario has never created a list of prescribed foreign jurisdictions.
For years, this created uncertainty for families dealing with incapacity issues involving assets located in multiple countries.
Court’s Analysis
Justice Doyle relied heavily on the earlier Ontario decision in Fisher v. Danilunas, where the Court confirmed that foreign guardianship orders may still be recognized at common law if certain safeguards are met.
The Court considered several key factors:
- whether the foreign order was final;
- whether the foreign Court had a real and substantial connection to the parties and issues;
- whether the process respected natural justice;
- whether there was any evidence of fraud; and
- whether recognizing the order would violate Canadian public policy.
In Abitbol, the Court found a strong connection to Israel because:
- Joseph had lived there since 1993;
- the majority of his assets were located there;
- the guardianship proceeding was commenced there; and
- his daughter also resided there.
The Court also reviewed the Israeli guardianship system in detail and concluded that it closely resembled Ontario’s own framework under the SDA.
Importantly, Israel’s “Guardian General” performs oversight functions similar to Ontario’s Office of the Public Guardian and Trustee (“OPGT”), including:
- ongoing supervision of guardians;
- mandatory reporting obligations; and
- the ability to require passing of accounts.
Justice Doyle noted that in some respects the Israeli oversight regime was even more intrusive than Ontario’s.
Service and Procedural Fairness
The Court also addressed whether Joseph himself needed to be formally served with the Ontario application.
Evidence from family members and a social worker established that Joseph’s cognitive condition had significantly deteriorated and that formal service would serve no meaningful purpose. The Court therefore dispensed with service.
The Court further concluded that involvement of Ontario’s OPGT was unnecessary because the Israeli system already contained sufficient safeguards and oversight protections.
The Result
The Ontario Court:
- re-sealed the Israeli guardianship order;
- recognized it as a valid foreign judgment;
- confirmed Vivane’s authority to act on Joseph’s behalf in Ontario; and
- directed that Ontario financial institutions and government agencies could rely upon her instructions.
Considerations
Abitbol is another important step toward modernizing Ontario’s approach to cross-border incapacity issues.
As more families own property internationally and more seniors divide their lives between countries, disputes involving foreign powers of attorney, guardianship orders, and incapable persons will become increasingly common.
For years, practitioners have identified the gap in Ontario’s legislation regarding recognition of foreign guardianship orders. Decisions like Fisher and Abitbol show that Ontario Courts are increasingly willing to fill that gap using common law principles of fairness, comity, and practicality.
The case is also a reminder that incapacity planning should take into account not only where a person lives, but where their assets are located. Cross-border ownership can create serious practical problems if legal authority granted in one jurisdiction is not automatically recognized in another.
Brian Madigan LL.B., Broker