Ontario’s recent decision in Groves v. Groves (2026 ONSC 1206) sharpens the boundaries of section 3 counsel in guardianship cases, a move that could shape how courts hear the voices of allegedly incapacitated persons.
What section 3 counsel does in guardianship disputes
Guardianship litigation asks the court to decide who will make decisions for a person who may no longer be able to make them alone. Section 3 of the Ontario Family Law Act requires a counsel to represent the alleged incapable party’s interests, ensuring their perspective is not ignored.
In practice, the counsel must gather any instructions the person can provide and present them to the judge. When the individual cannot speak or write, the counsel relies on observations, medical reports, and any indirect signals to build a picture of the person’s wishes.
Groves v. Groves sets a new limit
The case involved a dispute over who should manage the affairs of Mr. Groves, who suffered from advanced dementia. His sister sought guardianship, while his adult son argued that Mr. Groves still retained enough capacity to express preferences.
Justice Akbarali noted that the role of section 3 counsel is not to guess what the incapacitated person might have wanted. “When the individual cannot give instructions, the counsel’s advocacy must be anchored in concrete evidence, not speculation,” the ruling read.
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According to the decision, if no reliable indication of the person’s wishes can be found, the court may proceed without a section 3 counsel’s input on preference, focusing instead on the best‑interest standard.
The judgment also warned that counsel should not overstep by presenting imagined preferences. “The court’s hand was forced, oddly enough, by the lack of instruction,” Justice Akbarali wrote, emphasizing the need for restraint.
Legal commentators note that the ruling does not eliminate the requirement for section 3 counsel but clarifies that their duty ends where evidence ends.
For families, the decision means that a lack of clear communication from the allegedly incapacitated person could limit the influence of a dedicated advocate. It also signals to lawyers that thorough documentation of any expressed wishes is now more critical than ever.
In the middle of the article, it is worth considering how this change plays out at the kitchen table. When a loved one can no longer answer simple questions, families may feel compelled to guess what they would want. The new standard nudges them toward keeping written notes or video messages while the person is still able, reducing uncertainty if a guardianship becomes necessary later.
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The ruling has already prompted a handful of Ontario law firms to update their intake forms, adding sections that ask clients to record any known preferences about health care, finances, and living arrangements.
Judges in other provinces are watching the decision, as similar statutes exist across Canada. While the Ontario ruling is not binding elsewhere, it may serve as persuasive authority in future cases dealing with the same procedural question.
Critics argue that the decision could leave some vulnerable adults without a clear voice in court. Supporters counter that it prevents courts from relying on unfounded assumptions, which could lead to decisions that run counter to the person’s actual wishes.
As the case proceeds to potential appeal, the legal community will likely assess whether the balance struck by Justice Akbarali adequately protects both the rights of the incapacitated individual and the integrity of the judicial process.
The filing notes that the case citation is 2026 ONSC 1206, and the full judgment is available through the Ontario Court of Justice’s online database.
