Parents looking to avoid some of the disruptions that comes with separation or divorce might turn to nesting arrangements, which see the children staying in a single home while the parents take turns living in it in accordance to a custody or access schedule. Precautions in light of the COVID-19 pandemic may have parents looking towards nesting arrangements when they haven’t before. A recent decision from the Ontario Superior Court of Justice addresses a mother’s request to enter into a nesting arrangement in order to limit the parties’ children’s risk in relation to COVID-19.

An urgent motion

The mother brought the motion on March 15, 2020 seeking exclusive possession of the matrimonial home, subject to the father’s parenting time. The proposal would see the mother and children living in the home for a 14-day period, after which the parents would take turns living in the home with the children.

At the time the motion was brought, the mother was living with the children in her parents’ home. However, they are older and she said her father “was beginning to experience respiratory issues” while both parents were experiencing other symptoms of COVID-19. She said she and the children have been “sequestered” in certain parts of her parents’ home, but that one of the children started to experience a severe cough.

The father was living in the matrimonial home by himself at the time the motion was brought. But the mother said he could live with his parents while she stayed in the home with the children.

The father’s position

The father objected to the mother’s request, arguing the mother and the children could continue to live comfortably at her parents’ house. He also said his own parents have health issues and he did not want to present unnecessary risk to them.  He stated he would like to have a case conference prior to a hearing of the motion, noting they can be scheduled during the pandemic. The court, however, was skeptical of the usefulness of a 30-minute case conference, finding the matter urgent enough to deal with.

Assessing the situation

The court agreed that it would not be appropriate to provide the mother with exclusive possession of the home for a 14-day period. However, the court did find it to be in the children’s best interest to live there. The court suggested the parties could work to live in the home together while keeping distance between each other. In the alternative, the court agreed that the father should not be made to live with his parents. If the mother wants to stop living with her parents but not under the same roof as the father, the court suggested she move into her own space with the children.

If you are contemplating a separation, or are already in the process, and there are children involved, your first step should be to consult with a family lawyer who has experience with custody and access matters. NULaw and its predecessors have been helping clients in Toronto since 1953. Our lawyers provide clear, practical advice so that clients can make informed decisions about their parental rights. Contact us online or at 416-481-5604 to book a consultation.

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