A recent decision from the Toronto Estates List has brought into focus the challenges of acting as Section 3 counsel. In Groves v. Groves, 2026 ONSC 1206 (“Groves”), the applicants, Lori Groves and Mark Groves, sought guardianship over their father, John Groves (“John”), and an Order allowing them to apprehend John from his residence where he lived with the respondent, Lourdes Palmer.
John and the respondent had been in an intimate relationship since January 2023. The respondent, who was self-represented, did not seek guardianship over John but argued instead that a neutral guardian ought to be appointed. The respondent also alleged that John’s wishes were that he be protected from the applicants.
The applicants alleged that John, an 85-year-old man diagnosed with Alzheimer’s, had become involved in a predatory relationship with the respondent. The respondent removed John on three occasions from the retirement community where he had previously resided and where he received daily care. She also took John to open a new bank account and arranged for him to move into her home in Barrie. Beginning in March 2024, the respondent prevented the applicants from communicating directly with John and insisted that all communication “between John and his children or friends go through her”.
John had previously undergone multiple capacity assessments and there was extensive medical evidence surrounding John’s cognition and memory. For example, John was found to be incapable of managing property on February 10, 2023 by a capacity assessor. In August 2023, John’s family physician found he had progressive cognitive and functional decline and was vulnerable to “financial and medical abuse”. On June 15, 2025, John was found incapable of instructing legal counsel by another capacity assessor.
Section 3 Counsel’s Involvement
In May 2024, the respondent arranged for John to be represented by counsel. That private retainer was later converted into a section 3 counsel retainer by the Public Guardian and Trustee. Throughout the guardianship proceedings and at the final hearing, section 3 counsel expressed John’s wishes to remain with the respondent and to have access to his funds for travel with the respondent. Section 3 counsel also opposed the application for guardianship and submitted that a third-party attorney for property be appointed to manage John’s property instead. In advance of the application hearing, section 3 counsel filed a letter of wishes containing “John Groves’ position” and a statement of law. As a preliminary issue, the Court deliberated as to whether section 3 counsel’s letter and statement of law should be struck from the record.
The Court analyzed this issue in the context of section 3 counsel’s mandate under the Substitute Decisions Act, 1992, S.O. 1990, c. 30 (the “SDA”) and the applicable case law.
Apart from providing for counsel to be arranged for individuals whose capacity is in question, section 3 of the SDA explicitly deems the individual in question to have capacity to retain and instruct counsel. Early decisions relied upon this deeming provision to differentiate between the role of section 3 counsel and a litigation guardian. Although not relied upon in Groves, in Banton v. Banton 1998 ONSC 14926 (“Banton”), the Court found:
[34] Even in cases where the client is deemed to have capacity to retain and instruct counsel pursuant to section 3(1) of the Act, I do not believe that counsel is in the position of a litigation guardian with authority to make decisions in the client’s interests. Counsel must take instructions from the client and must not, in my view, act if satisfied that capacity to give instructions is lacking.
In Groves, the Court relied significantly on Dawson v Dawson 2020 ONSC 6724 (“Dawson”) which, in keeping with Banton, found that section 3 counsel and a litigation guardian each protect the interests of vulnerable people in distinct ways:
[33] Gomery J. noted that many s. 3 counsel make a tremendous effort to discern their client’s wishes and often provide the court with very helpful insight as a result. However, if they are unable to understand what a client wants, they cannot make decisions on that person’s behalf. By contrast, a litigation guardian stands in the shoes of someone under disability. They do not take instructions from the person under disability but make substitute decisions on their behalf, in accordance with their obligations and powers set out in r. 7.05.
Both Banton and Dawson demonstrate the inherent difficulty in acting as section 3 counsel. Section 3 counsel must continuously exercise their discretion in assessing whether and how their client’s wishes can be taken as instructions. This exercise is complicated in situations where capacity is fluid and where a client is vulnerable to being influenced by parties to the litigation. Underlying it all, lawyers acting as section 3 counsel may find it difficult to reconcile the limits of their role with ensuring that vulnerable individuals have a voice in proceedings that directly affect them.
The issue in Groves was that the Court found that section 3 counsel had overstepped their mandate by acting more like a litigation guardian. The Court found that, as of at least June 2025, John was incapable of giving instructions. A capacity assessment at that time found that John appeared unaware of any conflict with the applicants and the fact that he was represented by section 3 counsel. However, John still maintained an opposition to the application and his wish that section 3 counsel oppose the application despite having no memory of discussing the issue with section 3 counsel.
The Court dealt with the issue as a “matter of fact” finding that, because section 3 counsel could not obtain capable instructions from John, she was “without capable instructions notwithstanding the deeming provision in the SDA” (paragraph 44 of the decision).
On that basis, the Court gave little weight to section 3 counsel’s letter and the statement of law. The Court appeared very concerned at how section 3 counsel took legal positions which were consistent with the type of position that the respondent “would have been expected to take”.
As a matter of form, the Court also took issue with section 3 counsel seeking substantive relief and making assertions of fact within the statement of law, despite John’s apparent incapacity and no originating process or notice of motion to ground the substantive relief that was sought.
Ultimately, the applicants were successful, and the Court was especially unforgiving in its costs award as section 3 counsel’s costs were fixed to the costs that had been incurred prior to the assessment of incapacity on June 15, 2025.
Key Takeaways
Groves demonstrates that the role of section 3 counsel is a difficult one, existing in tension between:
- the duty to advocate for vulnerable individuals;
- the need to monitor capacity, which is often fluid; and
- the challenge of distinguishing between a client’s wishes and instructions that can properly form the basis of a legal position.
Groves adds to this tension. Other decisions have recognized that capacity assessments are not infallible and that capacity is fluid, and have accordingly treated the deeming provision as a “shield” affording section 3 counsel discretion to advocate notwithstanding an assessment of incapacity. For example, in Righter v. Righter, an unreported case, which was relied upon in Miziolek v. Miziolek, 2018 ONSC 2841 (CanLII) the Court found that despite an individual’s incapacity, section 3 counsel “still had a role to play – testing the jurisdiction of the court, authority to make orders, and making submissions on the evidence.”
Groves seems to direct section 3 counsel to immediately limit their involvement where there has been a specific assessment that the individual lacks capacity to give instructions or when there is overwhelming evidence of incapacity. Respectfully, this direction potentially undermines the role of section 3 counsel. A capacity assessment concluding that an individual lacks capacity to give instructions should not prevent section 3 counsel from expressing or acting upon what they deem to be clear wishes and instructions at a later date. To hold otherwise potentially marginalizes the role of section 3 counsel and is contrary to the purpose and function of section 3’s deeming provision.
This is not to say that Groves is inconsistent with section 3 and prior case law. Rather, Groves’ framing of John’s incapacity as a “matter of fact” that prevented section 3 counsel from taking a position or acting meaningfully after June 2025 obscures the underlying issue. At its core, Groves turned on the fact that the Court deeply disagreed with how section 3 counsel interpreted and exercised their role. In that sense, Groves is a testament to the precariousness of acting as section 3 counsel, and the importance of caution and investigation when obtaining a client’s wishes or instructions and acting on them.
In Groves, the medical evidence was extensive and strongly indicated that John’s wishes were unreliable and could not be taken as capable instructions on the issues in the application. On the other hand, can we fault section 3 counsel for their advocacy, and for acting upon wishes that appeared to be consistent throughout their involvement?
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.