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Epstein’s This Week in Family Law | Interim custody

Judge ruled on motion for interim custody by creating nesting arrangement in recent decision.

Epstein’s This Week in Family Law

Philip Epstein

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Interim Custody - Nesting

Veljanovski v. Veljanovski, 2015 CarswellOnt 9263 (Ont. S.C.J.): On either party’s version, they both had been separated but still lived together in the matrimonial home for a considerable period of time. The parties had two children, aged 5-1/2 and almost 4 years. Both parents sought interim custody and both parties argued that the matter was urgent and that tensions in the home were starting to rise. Justice Rogin of the Superior Court of Justice took a very careful look at the parts of the evidence that were uncontested. Since this was an interim motion and the parties had not been cross-examined, the learned Justice had restricted himself to that part of the evidence. This is a heavily factually based case and these kinds of cases virtually always turn on their facts and not the law.

Justice Rogin had three options. He could have awarded interim custody to the mother or the father or to both. He could have ordered one party out of the house and given the other exclusive possession, or he could have chosen to create a nesting arrangement. The Court chose the latter. Each party was allowed to have exclusive possession from Saturday to Saturday. Each party was required to pay half the expenses of the matrimonial home and provide consumables for the children for the week that they had possession of the home. This arrangement was to continue until trial, but it was also coupled with an immediate order for the sale of the matrimonial home. Justice Rogin is well aware that the situation may be uncomfortable for all concerned and, particularly, the children. He noted: Even if Val and John think that the children do not notice this tension they are incorrect. Children always notice.

In order to alleviate some of the potential future problems, Justice Rogin makes a very detailed multidirectional order that deals with exchange times, communication, telephone calls, the date of the closing of the home and other relevant matters.

Nesting is not a default position and an easy way out for judges who have to make the hard call on an interim custody motion. Nesting is a short-term solution to a difficult problem, but should be imposed when it is clearly justified. Here, there were a host of factors that militated in favour of a nesting order, rather than leaving the parties in situ and exacerbating the situation, but also avoiding giving one party a significant advantage before a trial.

It makes a noticeable difference in this case that the mother has significant financial resources available to her.

There is no discussion about where each party is to go during the week that they are not in possession, but it seems clear from a canvass of the facts that both parties have nearby family who can accommodate and assist them. Of course, one of the advantages of this nesting arrangement coupled with the multidirectional order is that the trial judge will be able to determine how well the parties manage during the inter regnum and it is probably a very good thing for the children that the parties are well aware that they must be on their best behaviour.

I think by levelling the playing field in this particular fashion, Justice Rogin has laid out a blueprint for a quick settlement here. The parties were not winners, but neither were they losers. It is much easier to settle a case in that atmosphere and I think this is a thoughtful and creative judgment.

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