Independent Legal Advice in Ontario: Essential for Domestic Contracts
When you’re ready to sign a domestic contract, like a separation or cohabitation agreement, you might feel worn out from negotiations and disclosures. However, rushing to sign can lead to issues. After investing time and effort, it’s crucial to aim for the best standard in domestic contracts. Independent legal advice is key to achieving this.
This guide provides an overview of independent legal advice but is not a substitute for personalized legal counsel.
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Understanding Independent Legal Advice
Independent legal advice involves consulting your own lawyer to ensure you fully understand the agreement. The lawyer’s role is to confirm that the agreement is fair, reflects your intentions, and that you understand your rights and obligations. This step is vital in finalizing a domestic contract, protecting you from unfair terms and preventing future disputes by clarifying expectations for both parties.
In practice, a lawyer will review the agreement with you, helping you comprehend your rights and obligations once it’s signed.
A lawyer can also identify any unfair provisions. While you may still choose to sign, this advice helps you understand the legal consequences.
When to Seek Independent Legal Advice
If you have a lawyer during negotiations, they will provide independent legal advice at the right time. If you’re representing yourself, you can hire a family lawyer for this purpose before signing.
Sometimes, the lawyer may advise against signing and suggest full legal representation before continuing negotiations. Although this may seem like an extra step, proper legal advice can prevent costly disputes later.
If you’re unsure about retaining counsel, consider that section 56(4)(b) of the Family Law Act allows a court to set aside a domestic contract if a party didn’t understand its nature or consequences. This means your efforts could be wasted if a court later finds a lack of understanding. As noted in Dougherty v. Dougherty, 2008 ONCA 302 (CanLII), this provision cannot be applied retrospectively to agreements made before the Act was in force.
Ensuring Both Parties Understand
It’s wise to obtain legal advice before signing, and it’s equally important for the other party to do the same. This ensures both parties understand their rights and responsibilities. If the opposing party does not have independent, legal advice, the agreement may not be binding on them. This is very important to ensure just because of that reason.
If a party waives their right to independent legal advice, they can sign a waiver attached to the agreement, showing they had the opportunity but declined.
How Stephen Durbin and Associates Can Assist
Entering a domestic contract with a partner or spouse may be right for you, but the process is complex. Proper advice can save you from costly litigation.
At Stephen Durbin and Associates (SD&A), we can guide you through the process, provide independent legal advice, or represent you if needed.
If you’re finalizing an agreement and need assistance, contact us at SD&A to learn how we can help.
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