Independent Legal Advice in Ontario Family Law: Why It Matters

What Is Independent Legal Advice?

Independent legal advice means receiving advice from a lawyer who represents only you — not the other party — and who has no conflict of interest in the matter. The lawyer reviews the agreement with you, explains your legal rights and what you are agreeing to, answers your questions, and confirms that you understand and are signing voluntarily.

Why Is ILA Important?

An agreement signed without ILA is more vulnerable to being challenged and set aside by a court. Courts look for evidence that both parties truly understood what they were signing and the rights they were giving up. A lawyer’s certificate confirming that ILA was provided is strong evidence of an informed and voluntary agreement.

When Is ILA Particularly Important?

• Before signing a separation agreement.
• Before signing a marriage contract or prenuptial agreement.
• Before signing a cohabitation agreement.
• Before signing any agreement that waives or releases legal rights.
• Before agreeing to variations of an existing support or property order.

What Does an ILA Session Involve?

During an ILA session, your lawyer will review the proposed agreement in detail, explain what each provision means and its practical effect on your rights, identify any unusual or potentially unfair provisions, explain what you would be entitled to under the law if no agreement were made, and confirm that you are signing voluntarily and not under pressure.

The ILA Certificate

After providing ILA, a lawyer typically provides a certificate confirming that they provided advice to their client, that the client appeared to understand the nature and consequences of the agreement, and that the client signed voluntarily. This certificate is usually appended to the agreement and provides important legal protection.

Does ILA Mean the Agreement Is Automatically Valid?

No. Receiving ILA is important but does not guarantee that an agreement will be upheld. If the agreement contains terms that are unconscionable, or if there was failure to disclose significant assets, a court may still set it aside. However, ILA significantly strengthens the enforceability of an agreement.

Can the Same Lawyer Advise Both Parties?

No. For advice to be truly ‘independent,’ each party must have their own separate lawyer. A single lawyer cannot represent both parties in the same matter — this would be a conflict of interest. The lawyer who drafts the agreement should represent one party, and the other party must seek their own independent counsel.