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When Birds of A Feather No Longer Flock Together: Court Might Make A Nesting

nest

When Birds of A Feather No Longer Flock Together: Court Might Make A Nesting Order

Summer is officially over and Fall is firmly on the horizon; many of us now have the urge to do more “cocooning”, by spending more time in our comfy homes. But this week I want to talk about “nesting orders” in Family Law, which are something different entirely.

A “nesting” or “bird’s nest” order is a relatively new, increasingly-popular solution to the age-old problem of how best to share custody of children after a separation leading to divorce: It involves a court ordering (or better yet, the parties themselves agreeing) that the matrimonial home will be “shared” after separation, usually on a week on/week off basis. The sharing happens on a rotating basis: The children remain full-time in the home, while the parents take turns living elsewhere, either in a second home that they also share, or else in their own separate individual residences.

Aside from the added cost of keeping a second residence, a nesting arrangement offers a uniquely co-operative solution which eliminates the need for children to be shuttled back and forth between parents, at least pending a final resolution of their longer term custody arrangements. It maximizes the stability and comfort of the children, while minimizing the disruption in their day-to-day lives, especially during the immediate post-separation period when financial and practical details are still being worked out.

In Ontario, nesting orders are not ordered by a court routinely enough, but they are gaining in popularity amongst judges and even separating couples themselves. Whether or not a court will order a “nesting” arrangement depends on the usual factors that govern most court-ordered arrangements, namely:

• the best interests of the children affected;

• any existing order made by a Court;

• any written agreement between the parties;

• the financial position of each spouse;

• which parent is the primary caregiver to the children;

• the conduct of the spouses towards each other and towards any of the children;

• any other relevant facts or circumstances.

Practically speaking, this last catch-all category of ““other relevant facts or circumstances” can encompass a broad array of considerations, such as whether either of the parents has a new romantic partner, and whether a nesting order would essentially separate older and younger siblings. The level of co-operation between parents is also a very key consideration for many reasons, including the need to adhere to rules, home maintenance schedules and standards of cleanliness in the home that is shared on a rotating basis. That obligation doubles if the parents are also sharing the second “satellite” home or condominium that they occupy when custody of the children is with the other parent.

For examples of a few cases in which a nesting order was granted, see:

Capirchio v. Capirchio, 2012 ONSC 57 (CanLII)  http://canlii.ca/t/fpqj9

Lamoureux v. Lamoureux, 2010 ONSC 4488 (CanLII)  http://canlii.ca/t/2c4nd

For those who are contemplating this kind of arrangement, we can help you navigate the details. At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.