What is independent legal advice and why do you need it in Canada?

If you're finalising a separation agreement in Canada, you'll hear the phrase "independent legal advice," often shortened to ILA. Many people assume it means they need a lawyer to draft or negotiate the whole agreement, which sends them into sticker shock. It doesn't mean that. ILA is a specific, relatively brief and much less expensive step. If you feel nervous about it, that is understandable: it is often the first time a lawyer looks at the deal you have worked hard to reach. Knowing what the meeting is for makes it far less daunting.

What is independent legal advice (ILA)?

Independent legal advice is a meeting between one spouse and a lawyer who acts only for that spouse. The lawyer reads the agreement, explains each provision in plain language, tells you about rights you may be giving up, and confirms that you understand what you are signing and are signing voluntarily.

The key word is "independent." The lawyer advising you cannot also act for your spouse, and should not be someone who has represented your spouse. Their sole obligation in that meeting is to you.

At the end of the meeting, the lawyer usually signs a certificate of independent legal advice, a short document confirming that they met with you, explained the agreement, and that, as far as they can tell, you are signing it voluntarily and with an understanding of its contents. Each spouse gets this from their own lawyer, and the certificates are attached to the agreement.

Why does independent legal advice matter legally?

Without ILA, a separation agreement is easier to challenge in court later. The usual grounds for setting aside an agreement are that one spouse didn't understand what they signed, signed under pressure, or didn't receive full financial disclosure. Ontario's Family Law Act, for example, allows a court to set aside a domestic contract where a spouse failed to disclose significant assets or debts, or where a spouse did not understand the nature or consequences of the contract. ILA deals directly with the second of those.

Courts don't require ILA in order to treat most agreements as binding, but its absence becomes a serious problem if one spouse later argues they didn't understand the deal. With ILA on file, that argument is much harder to make.

This protects both of you. If you're the one who feels you got a fair deal, you want that deal to hold up. ILA is part of what makes it hold up.

When ILA is required versus strongly recommended

For most separation agreements in most provinces, ILA is not a legal requirement for the agreement to be valid. There are important exceptions. In Alberta, an agreement dealing with property under the Family Property Act must be acknowledged in writing by each spouse in front of a lawyer, separately from the other spouse, for it to be enforceable; see the Alberta page. Some agreement templates also make ILA for both spouses a condition of signing.

In practice, any agreement that covers significant assets, a home, a pension, support or parenting should have ILA for both spouses. The cost is small compared with the protection.

The biggest misconception

Here it is, stated plainly: ILA does not mean the lawyer approved the agreement or thinks it is fair to you.

The lawyer is confirming that you understood the agreement, not that it is good, balanced or in your best interests. They may well tell you they think you've agreed to something worse than what a court would likely order. That is useful information. But their job in an ILA meeting is not to renegotiate on your behalf.

If the lawyer identifies something they think is genuinely problematic, they will flag it, and they may write a note on file recording their advice. You can then go back to the negotiation, ask for a specific change, or proceed anyway. Proceeding against advice is your right; just make sure it is a decision, not something that happens because you are exhausted.

What happens in an ILA meeting?

An ILA meeting typically takes 30 to 90 minutes, depending on the length and complexity of the agreement. Many lawyers can do it by video, with signing arranged afterwards. The lawyer will go through the agreement section by section, explain what each part means for you, ask whether you understand it, and give you time to ask questions. Expect questions like these:

• Has anyone pressured you to sign, or are you signing because you are afraid of what happens if you don't?
• Have you seen your spouse's financial disclosure, and do you think it is complete?
• Do you understand what you are giving up, for example a share of a pension or a claim to support?
• Do you understand what happens if your circumstances change?

Answer honestly. If you don't understand something, say so; that is the point of the meeting. If something has made you uneasy, tell the lawyer, even if it feels awkward.

How to prepare

A prepared client gets more from a short meeting. Before you go:

• Send the lawyer the final draft agreement at least a few days ahead, not on the day.
• Bring both spouses' financial disclosure, or a summary with the key numbers.
• Write down the three or four terms you are least sure about, such as support amount and duration, the home, pensions, or parenting.
• Bring the support calculations you relied on, so the lawyer can check them against the guidelines.
• Know your separation date and the date of marriage or cohabitation.

FairWell's ILA Prep Package helps you put all of this into one summary, so more of the lawyer's time can go on advising you. For a broader first meeting, see how to prepare for your first family lawyer meeting.

How much does ILA cost, and who pays?

ILA commonly costs a few hundred dollars, with quotes typically falling somewhere between $300 and $800 depending on the length and complexity of the agreement and the lawyer's rates. Ask for a flat fee when you book. In most cases each spouse pays for their own ILA, because each lawyer acts for only one person, although some couples agree in the agreement to share the cost.

This is one of the most efficient uses of a lawyer's time in the whole separation process: one focused meeting, and you have a properly executed agreement that is much harder to challenge later.

Choosing an ILA lawyer

• Choose a family lawyer, not a general practitioner, if the agreement deals with support, pensions or children.
• Make sure they practise in the province whose law governs the agreement.
• Tell them who your spouse is when you book, so they can check for conflicts before you meet.
• Ask whether they offer ILA as a flat-fee service and what happens if they recommend changes.

FairWell's professional directory lists family lawyers by province, and you can also book a flat-fee lawyer review if you want someone to look at the draft before you reach the ILA stage.

What to do this week

• Agree with your spouse that each of you will get ILA, and set a target date for signing.
• Shortlist two family lawyers in your province and ask each for a flat-fee ILA quote.
• Check that financial disclosure has been exchanged and is attached or referenced in the agreement.
• Write down your questions about the agreement, in order of importance.

Common questions

Can the same lawyer give ILA to both of us?

No. Independent legal advice means each spouse has their own lawyer who acts only for them. One lawyer cannot advise both of you on the same agreement.

Can the lawyer who drafted our agreement give me ILA?

Only if that lawyer acted for you alone. A lawyer who drafted the agreement for your spouse, or for both of you jointly, cannot give you independent advice.

What if the ILA lawyer says the agreement is unfair to me?

You can ask for changes, go back to negotiation or mediation, or sign anyway. The lawyer will usually record their advice. The choice is yours, but make it after you understand what you would be giving up.

Is ILA required for a separation agreement in Canada?

Not in most provinces for most agreements, but some agreements do require it, such as property agreements in Alberta. Even where it is optional, it makes the agreement much harder to challenge.

How long before signing should I get ILA?

Book it once the agreement is in final draft and disclosure has been exchanged. Allow a few days for the lawyer to read it before the meeting, and sign after the meeting, not before.

This guide is legal information, not legal advice, and it is written for a general audience across Canada and the United States. Family law is provincial and state-based and changes over time. Before you rely on anything here for your own situation, confirm it with a qualified family lawyer in your province or state. FairWell can connect you with one through the professional directory.