Independent Legal Advice for a Separation Agreement in Ontario

Your spouse or former partner has handed you a separation agreement and asked you to sign. Maybe they say a lawyer already drafted it and it is just paperwork. You may be wondering whether you really need your own lawyer, and what a certificate has to do with it.

This article explains independent legal advice, often called ILA, in plain language. It is general information, not legal advice about your situation.

What independent legal advice means

Independent legal advice means you meet with a lawyer who acts only for you, not for your spouse, and who explains what the agreement says, what rights you may be giving up and what your options are.

Ontario says plainly: you should each have your own lawyer look over your separation agreement before you sign it. Ontario's court guidance likewise says each party should get independent legal advice before signing.

Is it required?

For separation agreements, the Family Law Act has no mandatory certificate of independent legal advice. So a missing certificate does not by itself decide the matter. But the guidance still tells both people to get advice, and there are practical reasons for that, covered below.

Family arbitration is different. For family arbitration agreements, Ontario requires the lawyer giving independent legal advice to complete a certificate, and the certificate must be attached to the arbitration agreement if the matter goes to court.

What an ILA certificate is and how it works

The Law Society of Ontario's guidance says a lawyer giving independent legal advice should give the client a written certificate, have the client sign a copy, and send the signed copy to the other side's lawyer. In plain terms, the certificate is a record that you got advice from your own lawyer before signing.

How much a certificate matters if the agreement is later challenged depends on the facts, so it is worth confirming with a lawyer.

Why advice protects the agreement, and you

A court may refuse to enforce a separation agreement if a party did not fully disclose financial information. A court may also set aside an agreement, or part of it, if a party failed to disclose significant assets, debts or liabilities that existed when it was made, or did not understand its nature or consequences. Advice from a lawyer helps surface both problems before signing.

Agreements also have to meet formal requirements. A domestic contract, including a separation agreement, is unenforceable unless it is in writing, signed by the parties and witnessed. A lawyer can make sure those steps are done correctly.

Finally, you cannot easily change a separation agreement later. That is why advice before signing is so much more valuable than regret afterward.

Questions to raise with your lawyer

• Has the other person given full financial disclosure, and does it look complete?
• What would a court likely do with property, support and the home if we did not sign?
• Are the parenting terms workable, and could they be enforced?
• Does the agreement deal with child support and spousal support properly?
• What happens if circumstances change?

What to do next

• Do not sign on the spot, even if you are being pressed to.
• Ask for the full draft and the other person's financial disclosure.
• Book a meeting with your own lawyer, not the one who drafted it for the other side.
• Bring your income records, asset and debt information and any earlier agreements.
• Ask your lawyer for the written certificate once you have received advice and decided to sign.

If cost is a concern, Family Law Information Centres provide free information, but their staff do not give legal advice, and duty counsel can explain the law but cannot represent you in your court case.

Frequently asked questions