What is independent legal advice and when does a women need it?

Before a woman signs any kind of agreement related to her family law issues, she should obtain independent legal advice (ILA). This means she needs to meet with her own lawyer to review whatever the agreement may be.

Common agreements where ILA is needed include:

  • Cohabitation agreements
  • Marriage contracts
  • Separation agreements
  • Minutes of settlements
  • Mediation agreements
  • Any agreement entered into with child protection authorities

The purpose

The purpose of ILA is to ensure that that the person signing an agreement prepared by another party understands its contents fully, including all possible consequences to them, are aware of any legal or financial responsibilities they are committing to and know about any legal or financial rights they are giving up. It also provides an opportunity for the lawyer to make sure their client has received full financial disclosure and is not being pressured or coerced into signing the agreement.

ILA protects the person who obtains it by ensuring she knows what she is getting into. It also protects the other person signing the agreement and the lawyer who has prepared the agreement, because when ILA has been provided, it is difficult for someone to claim later that they did not understand what they were signing or they were coerced into signing it.

When a woman is looking for someone to provide her with ILA about a family law matter, she should ensure:

  • The person is a lawyer
  • The lawyer has not been recommended by her partner, a member of her partner’s family or her partner’s lawyer
  • The lawyer is not a member of the same law firm as her partner’s lawyer
  • The lawyer does not represent and has not represented her partner or any member of her partner’s family on any legal matter

In addition to the woman asking about these possible relationships, the lawyer’s office should run a conflict of interest check before the lawyer agrees to provide ILA.

The process

To be meaningful, ILA takes some time – on average, about 3 hours, but more if there are complicated issues. For example, a separation agreement where custody, access and child support is being sorted out and there are children from each person’s previous relationship as well as from the current one, may take more than 3 hours to provide as might a marriage contract or cohabitation agreement where one party has considerable and complicated assets that they are seeking to protect.

Typically, the lawyer will meet with the person seeking ILA, confirm the identity of that person, collect some background information, then review the document for which ILA is sought. The lawyer will most often do this with the client present, so they can ask clarifying questions. These questions often relate to financial disclosure: for a domestic contract to be valid on Ontario, each party must provide full financial disclosure to the other.

In this meeting, the client can also ask questions about any aspects of the agreement she does not understand or agree with.

The meeting between the lawyer and the client provides the lawyer with the opportunity to confirm that the client understands what she is signing and that she is doing so voluntarily.

Some lawyers prefer to review the document first before meeting with the client, so they can be ready with questions when the client comes to the appointment. This is especially true if the document is extremely long or complex.

Once the lawyer has reviewed the document, asked the client clarifying questions and obtained any additional information they need and is satisfied the client understands what she is signing and has not been pressured or coerced into it, the lawyer will give the client their opinion about whether the agreement is in the client’s legal interests and their advice about whether or not the client should sign it. Even if the lawyer gives this opinion and advice in person, it should also be provided in writing so there is a permanent record of it.

Assuming the ILA is positive, the lawyer can then witness the client sign it and, as well, provide a Certificate of Independent Legal Advice.

If the lawyer’s opinion and advice is that the client should not sign the agreement, then the lawyer may refuse to witness the client’s signature on it or may witness the signature and have the client sign a waiver indicating that the lawyer advised against doing so and the client chose to proceed nonetheless.

The cost of ILA depends on how long it takes, because most lawyers charge by the hour.

When ILA is essential

While everyone entering into one of the agreements listed above should obtain ILA, it is especially important in some situations.

Because of the significant statutory power held by child protection authorities, any parent signing an agreement with the CAS should obtain ILA to make sure their legal rights are not being ignored and their children are in the best possible situation.

When a woman is entering or leaving a relationship where there is a significant power imbalance, violence, abuse or where she is afraid of her partner, there is a greater likelihood that her partner may attempt to evade his legal responsibilities and/or hide his financial situation through a domestic contract such as a cohabitation agreement, marriage contract or separation agreement, and so ILA is crucial.

If you are supporting a woman who is considering signing minutes of settlement, a mediation or separation agreement or any agreement with the CAS, it is important for you to point out the value in obtaining ILA and assist her in finding a lawyer who can provide it.

Information independent legal advice is also available on FamilyCourtAndBeyond.ca.

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