Before you sign any kind of agreement related to your family law issues, you should obtain independent legal advice (ILA). This means you need to meet with your own lawyer to review whatever the agreement may be.
Common agreements where ILA is needed include:
- Cohabitation agreements
- Marriage contracts
- Separation agreements
- Minutes of settlement
- Mediation agreements
- Any agreement entered into with child protection authorities
Purpose of ILA
The purpose of ILA is to ensure that, when you sign an agreement
prepared by your ex-partner or his lawyer, you:
- Understand its contents fully, including all possible consequences to you.
- Are aware of any legal or financial responsibilities you are committing to.
- Know about any legal or financial rights you are giving up.
- It also provides an opportunity for your lawyer to make sure you have
received full financial disclosure and are not being pressured or coerced into signing the agreement. - ILA protects you by ensuring you know what you are getting into. It also protects your ex-partner and his lawyer – when you have received ILA, it is difficult for you to claim later that you did not understand what you were signing or that you were coerced into signing it.
Choosing a lawyer for ILA
When you are looking for someone to provide you with ILA about a family law matter, you should make sure that:
- The person is a family law lawyer.
- The lawyer has not been recommended by your partner, a member of your partner’s family or your partner’s lawyer.
- The lawyer is not a member of the same law firm as your partner’s lawyer.
- The lawyer does not represent and has not represented your partner or any member of his family on any legal matter.
- Once you have asked about these possible relationships, request that the lawyer’s office run a conflict-of-interest check before the lawyer agrees
to provide ILA.
Process
To be meaningful, ILA takes some time – on average, about three hours, but more if there are complicated issues.
Typically, the lawyer will meet with you, collect some background information, then review the document for which ILA is sought. The lawyer will most often do this while you are there, so they can ask clarifying questions. These questions often relate to financial disclosure: For a domestic contract to be valid in Ontario, you and your partner must provide full financial disclosure to each other.
In this meeting, you can ask questions about any aspects of the agreement you don’t understand or agree with. This meeting gives the lawyer the opportunity to confirm that you understand what you are signing and that you are doing so voluntarily.
Your lawyer might prefer to review the document first before meeting with you, so they can be ready with questions when you come to the appointment. This is especially true if the document is extremely long or complex.
Once the lawyer has:
- reviewed the document
- asked you clarifying questions
- obtained any additional information they need, and
- is satisfied that you understand what you are signing and have not been pressured or coerced to do so
the lawyer will give you their opinion about whether the agreement is in your legal interests and their advice about whether or not you should sign it.
Even if the lawyer gives you their opinion and advice in person, it should also be provided to you in writing so you have a permanent record of it.
Assuming the ILA is positive, the lawyer can then witness you sign the document and provide a Certificate of Independent Legal Advice.
If the lawyer’s opinion and advice is that you should not sign the agreement, then the lawyer may refuse to witness your signature on it or may witness the signature and have you sign a waiver indicating that the lawyer advised against doing so and that you chose to proceed nonetheless.
The cost of ILA depends on how long it takes, because most lawyers charge by the hour.
For more information, see paying for a lawyer.