ILA: Independent legal advice and how it works

what is independent legal advice timothy sullivan

“I had a marriage contract drawn up by my lawyer. My lawyer said my fiance needs to get independent legal advice before she signs it. What does that mean and entail?”

First of all, your lawyer is right: Before your fiance signs a marriage contract or cohabitation agreement that has been prepared at your direction by your lawyer, s/he should get independent legal advice. This doesn’t just protect your fiance, by the way – it also protects you. If, at some point in the future, the marriage or cohabitation breaks down and you end up in court, the fact that your fiance got independent legal advice prior to signing the agreement means that there is less likelihood of the agreement being put aside or challenged.

How does Independent Legal Advice (ILA) work? 

The importance of independent legal advice is to assure all the parties that unemcumbered legal advice has been provided to the client. The lawyer providing ILA must be assured that the advice is in fact independent (there is no conflict of interest with the other signing party), the advice is in fact legal (the opinion letter covers this and includes the formalities of the agreement and the appropriateness of the content) and the advice is whether the agreement meets the client’s needs from a legal point of view.

A lawyer would meet with the client, confirm the client’s identity, receive the contract, review it and finalize an opinion letter. The lawyer could attend with the client to witness the client’s signature and remit signed agreements to the client, the other party or the other party’s lawyer.

Then a Certificate of ILA is provided, confirming that advice was provided. However, the content of the advice is privileged between the client and the lawyer. In other words, your fiance could provide you with copy of the Certificate of Independent Legal Advice, but neither s/he nor the lawyer s/he engaged needs to disclose whatever was said in communication with the lawyer.

How much will independent legal advice cost?

A properly executed Certificate of ILA typically represent about three hours of a lawyer’s time, depending on the extent of the draft agreement and its complexity.  This includes meeting with the client, reviewing the documentation, reporting to the client and attending to the execution of the agreement (the signing of the document and witnessing). In my experience, lawyers generally charge an hourly rate for this work.

It’s important to note that a more complex marriage or cohabitation agreement – if there is significant property outside of a family home, if children are involved, or if the agreement is to set out specific details about spousal support in the event of a relationship breakdown – independent legal advice may require more time, and the lawyer’s fee will reflect this.

(Don’t be afraid to ask your lawyer about fees at the outset. The more both of you know about fees and what’s involved, the more successful all your interactions will be.)

Important: In my practice regarding ILA, payment for ILA must come from the client, and not from the person who drew up the contract or another party. I must have assured that it is the client – in this case, your fiance – hiring me, not another interested party, however apparently benevolent. Payment for services rendered must come from the client to demonstrate that it has been independently selected and managed.

More questions?  Don’t hesitate to contact us.

This blog is provided for educational purposes only and should not be construed as specific legal advice. This blog should not be used as a substitute for competent legal advice from a licensed lawyer in your province. 

FROM ADVOCATE DAILY: Bonkalo report focuses too much on paralegals, not on other solutions

Bonkalo recommendations fail to address larger issues

From AdvocateDaily this week:

The Family Legal Services Review focuses too much on the expanded use of paralegals without considering other potential fixes to the system, says Ottawa family lawyer Timothy N. Sullivan.

Sullivan, principal of SullivanLaw, says the report by former Ontario chief justice Annemarie Bonkalo is problematic because it proposes paralegals take on some responsibilities of family law and not others. But the larger issue, he says, is there are potential solutions not addressed by the report.

In her report to Ontario’s Ministry of the Attorney General, Bonkalo suggested a specialized licence for paralegals to provide specific family legal services without the supervision of lawyers. She recommended those services include custody and access issues, simple child support cases, restraining orders and straightforward divorce matters that don’t involve property issues.

“The recommendations fall within the report’s terms of reference, but they are probably deficient in accomplishing the task of having more people represented in court,” Sullivan tells AdvocateDaily.com. “The focus was how to get paralegals into the family law system.”

There have been long-standing concerns in family law about the rise of self-represented litigants — estimated at 57 per cent in 2014-15 — resulting in reduced access to justice for members of the public. But people wading into the often foreign territory of a courtroom without the guidance of a lawyer are also blamed for bogging down an already taxed system.

To read the rest of the article, visit AdvocateDaily.

FROM ADVOCATE DAILY: The frustration of non-compliance with orders in family law

Non-compliance contributes to lengthy delays

From this week’s AdvocateDaily:

Non-compliance with court orders is one the most difficult — and frustrating — aspects of family law, says Ottawa family lawyer Timothy N. Sullivan.

Litigation can be expensive and time-consuming, and spending time in court to ensure court orders are followed only exacerbates the issue, says Sullivan, principal of SullivanLaw.

He says a major stumbling block in reaching timely resolutions in family law involves participants ignoring or not responding to a court order — and sometimes even multiple court orders. Sullivan says he’s handled a few cases where he’s had to go to court repeatedly to ensure a court order is enforced.

“Many litigants are either not diligent enough in getting information as it is ordered or they consciously hide information,” Sullivan tells AdvocateDaily.com.

“Production of documents is always a difficult step. Courts tend to think of it as very easy. Lawyers see it as a necessary evil, and clients think of it as almost insurmountable.”

Sullivan says information requests from court typically involve gathering data as it existed at the date of the marriage, which could be decades ago.

Even information required from the date of separation could be a few years old. Documents are easily lost or misplaced over time, he says.

Sullivan points to some of his cases where one spouse keeps all relevant documents “and that leads to a potential order for a production of documents and you can’t produce it because they’re hidden in your old living room, or your wife or husband has it and isn’t turning it over.”

To read the whole article, visit AdvocateDaily.

ASK A LAWYER: Can my personal emails be subpoenaed?

Divorce proceedings can sometimes get ugly.

Timothy N Sullivan Ottawa lawyer answers questions

“I’m in the midst of a messy divorce, and my soon-to-be ex is convinced I had an affair – and he says he’s going to subpoena my personal emails to prove it. I’m not having an affair, but I don’t want this guy to have access to all my personal emails, regardless of what’s in them. Should I be worried?”

Probably not.

While it’s not unusual for work-related emails to be subpoenaed in the event of a criminal investigation, subpoenas to a third party (such as an ISP or email services provider) in civil and family are hardly ever sought because of the difficulty in obtaining them and their questionable relevance to any issue in a family law matter.  Sometimes police records are subpoenaed for motor vehicle accidents and CAS case files are requested for family cases, but emails are rarely sought in family law cases.

One exception might be if your ex was contending that you were hiding financial assets relevant to the divorce settlement and made the case that your email communications were the only or best way to prove this.  However, in the situation you describe, it’s unlikely that his lawyer would be requesting a subpoena or that the judge would grant one.

“What about my confidential email communications with my lawyer?”

Emails between you and your lawyer are protected under solicitor-client privilege just like all your other communications with your lawyer. However, emails aren’t 100% secure: Your email provider’s servers could get hacked; someone with a bit of technical knowledge could intercept them; or an unnoticed auto-complete in the address field could send your email to the wrong recipient (we’ve all done that from time to time).  However, communications between you and your lawyer are still protected and are inadmissible in court.

Additionally, some security experts will tell you that if you are working ‘in the cloud’ and you happen to be using a cloud server located in the United States, your data could be accessed by the US under the Patriot Act.  It may lose protection in the US but Canadian courts would still have to respect privilege.  While I have not encountered any situations in which this has been an issue in Canadian family law, our practice is not ‘in the cloud’ and our servers are located in Canada – like most lawyers, I tend to err on the side of caution.

More questions?  Don’t hesitate to contact us.

This blog is provided for educational purposes only and should not be construed as specific legal advice. This blog should not be used as a substitute for competent legal advice from a licensed lawyer in your province.