Independent Legal Advice for Separation Agreements: The ILA Certificate

Your spouse or their lawyer has sent you a separation agreement and asked you to see a lawyer who will sign an independent legal advice certificate. It can feel like a formality, or like pressure to sign quickly. It is neither of those things.

This article explains in plain terms what independent legal advice is, why it matters, what the lawyer generally does, and how to prepare so the meeting is worthwhile.

What an ILA certificate is

In plain words, independent legal advice means having your own lawyer review the agreement with you before you sign it.

Ontario.ca says each spouse should have their own lawyer review a separation agreement. It also recommends legal advice for a spousal support agreement. Whether a certificate is needed for your agreement is something a lawyer can confirm.

Why independent advice matters

Separation agreements let spouses divide property as they choose, and they are hard to change later. Only a court can change a support order or domestic contract. To change a contract, the parties negotiate a new one and file it with the court using form 26B.

There is also a risk of the agreement being challenged. An agreement about spousal support should be made with full, honest financial disclosure, without pressure, and with an understanding of its terms, or a court can set it aside. It is not a guarantee that the agreement will never be challenged.

What the lawyer generally does

Every lawyer has their own process, but a good review usually covers the following.

• Reads the whole agreement and explains what each section means for you.
• Asks about your income, assets and debts and whether you have received full financial disclosure.
• Explains your rights and options if you did not sign, including what a court might consider.
• Points out terms that are unusual, one-sided or unclear, and suggests changes.
• Checks that you are signing voluntarily and that nobody is pushing you.

On support, the lawyer can walk you through the factors that matter. For spousal support these include income differences, children and who cares for them, ages, roles during the relationship, health and ability to self-support. For child support, a court must make the order in accordance with the applicable guidelines.

What the certificate does not do

What a certificate covers depends on what the lawyer is asked to do, so it is worth confirming the scope with the lawyer before the meeting. The lawyer's role is to advise you, and the decision to sign remains yours.

The lawyer is also not there to act for both spouses. Whether one lawyer can ever act for both people is a question about professional rules, and a lawyer can tell you whether that is possible in your case.

If support is part of the deal, the certificate does not make the agreement enforceable by FRO. FRO enforces a separation agreement only if it is registered with the court using form 26B and the right documents are sent to FRO.

Preparing for the meeting

The more you bring, the more useful the advice. Child support income is usually based on tax returns, and the usual benchmark for disclosure is the three most recent personal income tax returns. Court financial statements are a helpful checklist: Form 13 for support-only cases and Form 13.1 where property or debts are involved.

• The draft agreement, including every schedule.
• Your spouse's financial disclosure, and your own.
• Recent tax returns and notices of assessment.
• A list of assets and debts, with dates and values where you know them.
• Your questions, written down in advance.
• Any messages that show deadlines or pressure to sign.

If income is disputed, a court may impute income to a spouse as it considers appropriate in the circumstances. Ask the lawyer whether the income figures in the draft look realistic.

What to do next

• Do not sign until you have read the whole agreement and had it reviewed.
• Ask for more time if you feel rushed. A fair agreement should survive a few days of review.
• Choose a lawyer who is not connected to your spouse and who will act only for you.
• Ask about the cost and the timeline before the meeting.
• If the advice is to change terms, ask your spouse or their lawyer for a revised draft and review it again.

Your situation is unique, and a family lawyer can tell you how an agreement is likely to affect you and whether signing makes sense.

Frequently asked questions