Do I Need Independent Legal Advice Before Signing a Parenting Agreement?

You have a draft agreement in front of you, and the other parent is asking you to sign. You may be wondering whether you really need to pay a lawyer to read it, especially when you trust each other and mostly agree.

This article explains in general terms what Ontario says about legal advice, when it is required, and why signing without advice can cause problems later. It does not replace advice about your own agreement.

Is independent legal advice required?

For a separation agreement, Ontario.ca says a lawyer is not required to make one, but you should get advice before signing because it can be difficult to get a court to set one aside. So the usual answer is that advice is strongly recommended rather than mandatory.

There are exceptions in particular processes. In family arbitration, you and the other person must get independent legal advice before starting, each lawyer gives an ILA certificate, and arbitration awards cannot be enforced in court unless both sides received legal advice. For a mediated agreement, each person should get advice from a different lawyer before signing to make it legally binding.

Why advice matters even when you agree

A mediator records any agreement in writing but does not decide or give legal advice. A lawyer who is acting for you can explain what each clause means for your own situation, which a neutral person cannot do.

Lawyers also have duties in this area. A legal adviser must encourage family dispute resolution where appropriate, inform the client of family justice services, and inform the client of their duties under the Divorce Act.

• Parenting schedules, holidays, travel and relocation terms can affect your life for years.
• A clause that looks routine may limit your options later.
• An agreement you sign may be difficult to undo.
• Having your own lawyer means the advice you receive is focused on your side of the agreement.

When an agreement is binding, and how it may be challenged

Ontario.ca says a separation agreement is binding if you understand its terms and consequences, both gave complete and honest financial information, and neither was pressured to sign. Parenting terms are also subject to the court's best-interests review, so how this applies to a parenting agreement depends on your situation.

Having no lawyer does not automatically cancel an agreement, and the details of when a court will set one aside depend on the facts. A lawyer can tell you how those principles would apply to your circumstances.

The court has the final word on parenting terms

Even a signed, advised agreement does not bind the court on the child's best interests. If a parenting plan is submitted, the court must include it in the order unless it is not in the child's best interests, and it may modify it first. The court gives primary consideration to the child's physical, emotional and psychological safety, security and well-being.

If you want the agreement enforced, you can ask the court to enforce a parenting arrangement in a separation agreement, and failing to follow an order without good reason can bring a fine or jail. Safety concerns matter too: mediation may not be safe or effective where there has been family violence and ongoing safety concerns.

What to do before you sign

• Do not sign under time pressure; ask for time to review.
• Make sure you understand every clause, including schedule, decisions, travel and relocation.
• Gather complete financial information and expect the other parent to do the same.
• Book advice from your own lawyer, separate from the other parent's.
• Ask what happens if circumstances change, and how disputes will be resolved.
• Keep a signed copy and notes of how the agreement was reached.

If cost is a worry, the Law Society Referral Service can connect you with a family lawyer for an initial consultation of up to 30 minutes, and limited-scope services and Legal Aid Ontario may also help. What a limited-scope arrangement covers depends on what you and the lawyer agree, so it is worth confirming with a lawyer.

Frequently asked questions