Introduction
As we get ready for the fall of 2023, many of us prepare our homes for the winter weather to come. We put away the summer furniture, close the pool, check the furnace, switch out our summer clothes for fall/winter clothes, fertilize the grass for winter, and other such chores. In general parlance, this is often referred to as “nesting.” We have borrowed the word from what birds do to prepare their homes.
Some years ago, a smart family law individual (individuals) though that we could apply the term to a concept in domestic disputes whereby the children – the special gift we keep in our own “nests” – will remain in the family home, safe and sound, while mom and dad leave the home at different intervals. It’s a unique situation and, given the current realities of the real estate and housing market, may lose its uniqueness as time goes on.
In this blog, I will discuss exactly what a nesting order is, when it may be ordered, how to ask for it and how to defend against it. It may not be a common remedy that is sought, but it’s definitely worth your while to know about it if the topic is broached by your lawyer, your client, the other side, by the court, or in an ADR (mediation) setting.
What is A Nesting Order?
A nesting order occurs when a judge decides to keep the child or children in the matrimonial home, while rotating the parents in and out of the same home, to maintain the continuity of the parents’ involvement, while minimizing the disruption to the child or children.
An Illustration
Let’s say we have a family of 3 – a husband, a wife, and one child. Let’s say the parents are enjoying a “week-about” parenting arrangement with the child (one week with dad and one week with mom). However, rather than the child having to gather their belongings each week and shuffle between the two homes, there is only one home from the child’s point of view, and mom and dad take turns (on a week-on, week-off basis) living in the home with the child. During the week that the parent is not with the child, the parent will live in a completely different home, usually a family member, a new partner’s home, or a second property that the parents had at the time of separation, or have newly acquired post-separation.
What Is a Court’s Authority for a Nesting Order?
Under both the Divorce Act (section 16, for married couples) or the Children’s Law Reform Act (section 24, for non-married couples), the court has the authority to make parenting decisions that are in the best interests of the child. As an extension for deciding what is best for a child, a court will decide where that child lives, with whom, and on what terms.
When Will A Court Make Nesting Order?
Continuing with the above comments, a judge will make an order that the parties engage in a nesting arrangement if to do so would be “in the best interests of the child.” I put this phrase in parenthesis as it is defined in both legislations almost identically. There are a set factors that the courts will look at and consider to decide whether a parenting arrangement meets the needs of the child. Such decisions are made on a case-by-case basis.
Generally speaking, though, after going through cases where nesting orders have and have not been made, nesting orders will often be granted:
- If the parties have lived in the same home with little interaction and little conflict
- If the parties each have a strong relationship with the child
- If the parties have alternate living arrangements for themselves
- If the parties can continue to live and work in the same community without much disruption
- The child’s emotional well-being would be preserved by staying in the same home
- The child’s educational well-being would be preserved by staying in the same home
- The child’s social well-being would be preserved by staying in the same home
- The status quo mirrors this arrangement.
This list is neither definitive nor exhaustive. As always, the specific facts of the case will govern the success or failure of a request for a nesting order.
Bring (or Defending) a Request for a Nesting Order
Nesting orders are not usually long-term solutions; although they may be, generally speaking, such orders allow the parties to do what’s best for the child in the moment, while they make the necessary arrangements to finalize their family law issues. It’s to ensure minimal disruption for the child.
Accordingly, if you are seeking a nesting order, you would ask for same on a motion. Like almost all motions, the parties would benefit from receiving a judicial opinion on the issue at a case conference, and to hear whether the judge would, or would not, be inclined to make such an order at a motion.
Whether you are seeking the nesting order or wish to defend it, please reference the factors and criteria that I mentioned above. Remember to focus on what is best for the child, because that is what the judge will do. They have to decide between the inconvenience to a child vs. the inconvenience to a child, so depending upon your position, you need to show the one inconvenience is substantially greater than the other. If it’s a toss-up, a judge is inclined to side with what is best for the child.
To support your position, it would help to have professional unbiased perspectives, e.g. to show how the child is doing in school, get supporting letters from educators; to show how the child is doing physically and emotionally, get supporting letters from healthcare givers; to show the child is doing socially, get verification of the activities the child is enrolled/involved in, and whether the nesting order will allow that continue or put it at risk.
As well, to the lawyers who read this blog, it would be very helpful to a judge/court deciding the issue to prepare a factum, a casebook of authorities, or both.
Does a Nesting Order Impact Who Owns the Home?
Please note that if a judge ultimately decides to make a nesting order, the decision does not change a person’s ownership rights to the home. Such orders, however, do impact whether a party gets to be in possession of their home, and if so, on what terms.
Conclusion
It is trite to say that no two families are alike, and that the courts will deal with each family on a case-by-case basis. I say this because nesting orders are not a common remedy that is sought as circumstances do not usually align themselves to support an order for a nesting arrangement. However, as more and more couples decide to focus on what is best for the child, as opposed to what is best for themselves, it is important to be aware of the possibility that a court might entertain the idea of a nesting order.
Simply stating in an affidavit that you need a nesting order, or in contrast, that you do not agree to a nesting order, will not help you succeed at a motion for same. You must support your position, whatever it is, with both objective and subjective evidence, while keeping an eye on what is (and is not) best for your child in doing so. If you don’t, you may find yourself living out of a suitcase for an extended period of time.