Not as an absolute legal requirement, but it is the cheapest evidence a lender can buy that the guarantee will hold up if the marriage or the loan later goes wrong.
Short answer
The doctrine is common law, not statute. The Court of Appeal for Ontario has held that a presumption of undue influence “arises if the nature of the relationship between the debtor and the surety coupled with the nature of the transaction between them justifies, without any other evidence, an inference that the transaction was the result of the undue influence of one party over the other.” A spouse guaranteeing the other spouse’s business debt, on security over the family home, is squarely the relationship the presumption targets.
If it arises, the lender is put on notice: it “must take reasonable steps to try to ensure that the proposed guarantor understands the transaction and is entering into it voluntarily by encouraging the guarantor to seek and obtain independent legal advice and a full explanation of the transaction.” If the lender has not taken those steps and the guarantor later claims undue influence, “the evidential onus is on the lender to adduce sufficient evidence to rebut the presumption” — which can mean months of litigation over a document that a second retainer, at the outset, would have made largely unnecessary. A written independent-legal-advice certificate from separate counsel is the standard way a lender discharges that onus in advance, though the presumption can still be rebutted afterward by the guarantor’s own evidence of genuine understanding and free will. A guarantor who has no financial stake whatsoever in the transaction is the harder case for a lender to defend.
the spousal guarantee and independent legal advice is the Ontario version of this fact pattern — one lawyer for both spouses, no separate certificate, and fourteen months of litigation before the guarantee was upheld. British Columbia has no equivalent automatic protection at all when a home is pledged as security; see a BC home charge, and no entry was ever filed for how differently the two provinces treat the same collateral arrangement.
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