1836 Bathurst Street  Toronto, Ontario  M5P 3K7

416 489 8890  steve@benmor.com

In custody and access disputes, what is a ‘bird’s nest’ or ‘nesting’ arrangement?

It is a universally accepted truth that separation is highly disruptive to the life of a child. Children are usually very aware of the situation at home, yet they have no control over the choices or actions of their parents. When their parents decide to separate, children are given little advance notice and almost no input into the new residential arrangement. In many cases, they are forced to move out of their home, away from their friends and sometimes to new schools.

Despite the turmoil that the parents are facing, particularly in high conflict cases, family court judges are making more creative and child-focused orders regarding custody and access. Specifically, they are making the children the main priority by considering their aversion to change and their need for familiarity, stability and permanence – all during an otherwise unstable moment in their life.

This was the situation that Mr. Justice Graham faced in the case of Bodenstein v. Bodenstein [2012] O.J. No. 996. In that case, the mother was asking for exclusive possession of the family residence (i.e. an order evicting the father from the home and permitting the mother to reside in the home with the children). The mother claimed that the circumstances in the home were intolerable and that the children needed a home, free and clear of the conflict between their parents.

The court dismissed her request and instead acted to promote the best interests of the children by maximizing the children’s contact with each of their parents, pending the establishment of a temporary or permanent parenting plan. Mr. Justice Graham ordered a ‘week about nesting arrangement’ until the sale of the matrimonial home. That is, the children were to remain living in the matrimonial home, while each parent rotated in and out of the home for one week at a time with the children.

The court gave very little weight to the fact that the mother had left the home with the children for about 7 months – a decision she made to reduce the conflict that the children witnessed. The court stated that it should be careful not to treat the decision of the moving parent as creating a status quo, or as an indication that the parent should not have an equal parental role.