Family Law
#12 - Independent Legal Advice
STANDARD
A lawyer retained to provide Independent Legal Advice must review the documents, facts and circumstance to a degree sufficient to ensure that a client, has enough information to make a voluntary, informed decision.1
REFERENCE MATERIALS
Notes:
1. Hartshorne v. Hartshorne, 2004 SCC 22 (CanLII), [2004] 1 S.C.R. 550 - Independent legal advice at the time of negotiation is an important factor in determining whether a decision to enter an agreement was informed and voluntary; Miglin v. Miglin, 2003 SCC 24 (CanLII), [2003] 1 S.C.R. 303 - The degree of professional assistance received by the parties will often overcome any systemic imbalances between the parties; Rick v Brandsema, 2009 SCC 10 (CanLII), [2009] 1 S.C.R. 295 - Unconscionable agreement - Full and honest disclosure of relevant financial information.
Related Legislation:
Children and Family Services Act, S.N.S. 1990, c. 5.
Additional Commentary:
Rogerson v. Rogerson, 2004 NSSF 37 (CanLII), 222 N.S.R. (2d) 324. - Minutes of Separation set aside because one party did not independent legal advice.
Webb v Tomlinson, 2006 CanLII 18192 (ON S.C.) - Solicitor used an ILA checklist. – Detailed notes taken.
Haughn v. Haughn, 2008 NSSC 265 – Validity of Agreement upheld – ILA obtained.
Hysler v. O’Connell, 2004 NSSF 117 (CanLII) - Validity of Agreement upheld – ILA obtained.
LeVan v. LeVan, 2008 ONCA 388 affirmed at 2008 ONCA 388 – Pre-nuptial contract – ILA obtained – Lack of financial disclosure – Egregious conduct of spouse.
Dimick v Dimick, 2008 NSSC 333 – Validity of Agreement upheld – Amendment to contract – Inquiry into ILA.
MacLean v. MacLean, 2009 NSSC 216 (CanLII) – Lack of ILA – Validity of Agreement – No Financial Disclosure.
DOWNLOADS
Related Ethics:
Legal Ethics and Professional Conduct: A Handbook for Lawyers in Nova Scotia, 2nd ed. (Halifax: Nova Scotia Barristers’ Society, 1998) c. 5-7, 18, as amended.
Chapter 4 (see Commentary 4.20 - The lawyer should not undertake to advise an unrepresented person, but should urge such a person to obtain independent legal advice and, if the unrepresented person does not do so, the lawyer must take care to see that such person is not proceeding under the impression that the lawyer is protecting such person's interests.)
Chapter 7 – Conflict of Interest between a Lawyer and a Client.
Precedents:
ILA Checklist - prepared by Philip Epstein QC & publicized by LAWPRO
PracticePRO Retainer Precedents
Includes:
- Family Law Agreement Retainer
- Client Billing Information Document
- Client Information Document
Independent Legal Advice Checklist – Family Law Matter (Canadian Bar Association)
Community Resources:
NS Legal Aid: There are 16 offices across the province: Call 1 877 420 6678
Legal Information Society of Nova Scotia
Legal Resources in Nova Scotia Brochure
ARTICLES
Tjaden, Ted. / The law of independent legal advice -- Scarborough, Ont. Carswell, 2000, [KB 261 T625 2000]
Lawyers Weekly, "Independent Legal Advice in Family Law", (Nov. 25, 1994)
Creighton, J. Ronald / Undue Influence and Independent Legal Advice (October 1992), [KB 170 C760 1992]
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Approved by Council on March 25, 2011