Exclusive Possession vs. Nesting Order
Yet another case worth delving into on exclusive possession or a relief for a nesting order for a matrimonial home. In, Chaudhury v Meh 2019 ONSC 6101, the issue revolved around exclusive possession or a nesting order to be granted to one of the parties. What does one ask for? This case describes the circumstances and is a useful guide for the future.
The Court went into the law, quoting the Family Law Act. Section 24(1)(b) of the Family Law Act, provides that a court may direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs. Section 24(2) provides that such an order may be made on an interim basis on motion. Both parties relied on this section in support of the orders they seek.
 Section 24(3) identifies the criteria a court shall consider when determining whether to make an order for exclusive possession. These are:
a. The best interests of the children affected;
b. Any existing orders under part I (Family Property) and any existing support orders or other enforceable support obligations;
c. The financial position of both spouses;
d. Any written agreement between the parties;
e. The availability of other suitable and affordable accommodation; and
f. Any violence committed by a spouse against the other spouse or the children.
 The paramount consideration in determining exclusive possession of the matrimonial home where there is a child involved is that child’s best interests. Where the parties’ financial means allow for the maintenance of two households, a child’s interests should outweigh the proprietary interests of the spouses in possession of the matrimonial home: Liao v. Liao, 2003 CanLII 2167 (ON SC),  O.J. No. 5063 at para. 25.
What is a nesting order?
 A nesting order may be in a child’s best interest where it keeps the child in the matrimonial home, while rotating the parents in and out, to maintain continuity of the parents’ involvement while minimizing the disruption to the child. However, nesting orders have been rejected where they create opportunities for conflict or perpetuate conflict between the parents. Where the parties have lived in the same home with little interaction and little conflict, a nesting order may be appropriate: Grandy v. Grandy¸ 2012 NSSC 316 at paras. 33, 35.
The Judge then went into a review of each of the factors set out in the legislation. These are the facts of the circumstances of the case -
The child’s Best Interests
 I have already noted that S is 11 years old. She is an only child. At the moment, both parents have the ability to be home and available to her most of the time.
 In August 2018, Ms. Chaudhry was diagnosed with stage 2 breast cancer. She has since undergone two surgeries, chemotherapy and radiation. She is on long term disability from work. She currently plans a gradual return to work beginning in November 2019.
 Mr. Meh’s employment history includes a position with RBC at which he earned approximately $125,000 per year. However, in 2013 he inherited significant wealth from his father, and he currently spends his time managing his investments at either the matrimonial home or his mother’s residence, where he is a regular visitor. He thus has a great deal of flexibility in his day.
 S has been living with her parents in the same house for her entire life.
 Ms. Chaudhry deposes that she and S, but not Mr. Meh, are well-integrated in their local community, which is warm and supportive. She includes an affidavit from a neighbour that confirms her evidence. The neighbour deposes that the neighbourhood came together according to a schedule to provide Ms. Chaudhry and S with meals during Ms. Chaudhry’s cancer treatment. Because Ms. Chaudhry’s family lives out-of-province, the support of her local community has been particularly important during Ms. Chaudhry’s treatment. Ms. Chaudhry states that Mr. Meh has not been supportive or understanding of her health issues. The neighbour states that Mr. Meh did not participate in preparing meals for Ms. Chaudhry or S during Ms. Chaudhry’s treatment.
 Mr. Meh deposes that he was as involved in supporting Ms. Chaudhry during her treatment as she would allow him to be. He states that Ms. Chaudhry tries to control S and isolate her from him, making it difficult for him to form connections with, for example, the parents of S’s friends.
 S has her own bedroom on the third floor of the home. Currently, Ms. Chaudhry is occupying the master bedroom on the second floor. The spare bedroom on the second floor is Ms. Chaudhry’s office space. Mr. Meh is sleeping in an open plan attic space through which S must pass to enter or exit her bedroom. Mr. Meh states that he has been unable to occupy the spare bedroom because Ms. Chaudhry uses it for her office. Ms. Chaudhry states the opposite: that she would prefer him to be in the spare bedroom, but he chooses to be in the open plan space.
 According to Mr. Meh, Ms. Chaudhry spends most of her time in the master bedroom, while he occupies the main floor of the home.
 There has been conflict between the parties over the master bedroom. Ms. Chaudhry states that Mr. Meh invades her privacy by entering the bedroom, including times when she is not home. Mr. Meh states he only enters the bedroom if S is there with Ms. Chaudhry, because Ms. Chaudhry tries to keep S in the bedroom to deny him parenting time with her.
 The tension in the home and the parties’ sleeping arrangements are impacting S’s social interactions. A parent of S’s friend and classmate swore an affidavit indicating that when her daughter and S play together, they prefer to do it the friend’s home, because there is so much tension at S’s home. She also indicated that she is no longer comfortable allowing her daughter to sleep over at S’s home, because Mr. Meh’s sleeping area is adjacent to S’s sleeping area, requiring the girls to walk through Mr. Meh’s sleeping area to get to S’s.
 Both parties describe an incident on June 11, 2019. According to Ms. Chaudhry, on that day she learned that Mr. Meh had frozen their joint line of credit which she required to fund her expenses. She states that he ignored her when she tried to raise the issue, and as a result, she threatened to smash his laptop. She states that he responded by trying to wrestle the laptop out of her hands. She threatened to call the police, and he then stormed out of the house, breaking a lock on his way out. She states she was concerned for her safety and called the police. She also states that S overheard the argument and was very upset by it. She deposes that the police chose not to lay any charges, but suggested she take S to stay at a woman’s shelter, which Ms. Chaudhry did not do, concluding it would not be in S’s best interests to do so.
 Mr. Meh’s description of the incident is quite different. He suggests that he froze the joint line of credit because Ms. Chaudhry had been using it unreasonably. When Ms. Chaudhry discovered what he had done, he deposes she became “hysterical, rude, aggressive and abusive”. She then took his expensive computer and vowed to destroy it. He states that she called the police and made false accusations of assault against him. He states the police did not charge him, but rather noted there was a “struggle” between the parties. Mr. Meh states that he voluntarily went elsewhere for the night to avoid further conflict. He states that S slept through the entire incident.
 The next day, June 12, 2019, Mr. Meh states that Ms. Chaudhry took S from the home and disappeared for three days, only returning after Mr. Meh served emergency materials for a motion requiring S to reside in the matrimonial home and seeking a week-about parenting schedule. Ms. Chaudhry states that she and S were just staying with a neighbour, and then S had a sleepover with a friend. She states Mr. Meh was in contact with S by email throughout this period. At the same time, on June 13, 2019, Ms. Chaudhry brought an ex parte motion for exclusive possession of the matrimonial home, which she was instructed to return on notice. Ms. Chaudhry’s motion was eventually returned before me. Mr. Meh’s motion was settled, with the parties agreeing to a summer schedule. Ms. Chaudhry states that the summer schedule included a nesting arrangement, which was not successfully implemented.
 While the parties’ depictions of the current situation are at odds in material respects, both parties’ versions of the facts support the conclusion that there is a great deal of tension and conflict in the home.
 There are aspects to the current situation that I find very troubling. For example, Mr. Meh admits to carrying a camera with him to make video recordings. He states he has been “forced’ to wear a body camera to protect himself after what he characterizes as Ms. Chaudhry’s false report to police and other threats she has made to involve police. I have grave concerns about the effect on S of being recorded on a regular basis. For that reason, in my endorsement of September 26, 2019, I ordered that neither party record S, or record each other in S’s presence. Mr. Meh does not appreciate the harm his conduct can cause S.
 Moreover, both parties agree that S is beginning to show signs she is suffering. Ms. Chaudhry deposes that S recently had what she believes to be a panic attack during a drive with Mr. Meh. She believes the conflict between the parties is wearing on S. Mr. Meh agrees that S gets anxious, but he blames Ms. Chaudhry’s parenting for causing unnecessary stress and tension to S. There is also evidence in the record that S is getting headaches, which may be stress-related.
 I have already noted the evidence of S’s friend’s parent, that S and her friend prefer to play at the friend’s house so as to avoid the tension in S’s home. The conflict between the parties is interfering with S’s daily life.
 In my view, S’s best interests require a physical separation of her parents. She is currently living in an atmosphere of conflict, with Mr. Meh “protecting himself” by wearing a body camera, where friends are hesitant to come over to play, and with police involvement. Each parent is contributing to maintaining the conflict, leaving S trapped in the middle, such as when her parents gather in or around the master bedroom jockeying for S’s time. It is in S’s best interests for her to have a regular parenting schedule with time with each of her parents. She also needs to remain connected in a significant way to her home and community.
Any Existing Orders under part I (Family Property) and any existing support orders or other enforceable support obligations
 Currently there are no orders respecting support apart from the temporary consent order the parties entered into pending the return of the financial issues on this motion in November 2019.
The Financial Position of Both Spouses
 I have already described Ms. Chaudhry’s current circumstances; she is on leave from work with a gradual return to work to begin, hopefully, in November 2019. Ms. Chaudhry completed her PhD in 2015 and re-entered the workforce after an absence in April 2016. Her annual income at present consists of her disability insurance payments. According to her Financial Statement, she is earning $54,394.68 per year. On her return to full-time work, her income is expected to go up. Prior to her diagnosis and disability leave, she was earning approximately $120,000. However, since separation her debts have increased. Her savings are limited to an RRSP of about $115,000 and her half interest in the matrimonial home. As I noted, Mr. Meh has agreed to provide her with a without prejudice payment of $25,000.
 Mr. Meh’s annual income from his investments, according to his income tax return, is $205,000. On the return of the motion, I understand that Ms. Chaudhry will argue that I should impute a higher income to Mr. Meh. According to his Financial Statement, he holds investments worth over $8.7 million. He owns a condominium, which is currently rented, in addition to his interest in the matrimonial home.
 Mr. Meh is in a superior financial position to that of Ms. Chaudhry.
Any Written Agreement Between the Parties
 There is no written agreement between the parties.
The Availability of Other and Affordable Accommodation
 I have already concluded that Mr. Meh is in a superior financial position to that of Ms. Chaudhry. He is in a financial position to easily obtain other accommodation.
 Ms. Chaudhry’s financial position is more precarious. She may be in a position to obtain other affordable accommodation nearby with the $25,000 Mr. Meh has agreed to provide, but that amount is fixed, and the duration of the litigation between the parties is uncertain. I will be addressing the question of support on the return of the motion in November 2019, but the support payments Ms. Chaudhry will be entitled to, if any, is currently unknown.
 I note that Mr. Meh has indicated he is prepared to fund, on a short-term basis, an AirBnB or other short-term accommodation that the parties can share should I grant his motion for a nesting arrangement. This proposal would have the parties sharing both the matrimonial home and a secondary accommodation. While such an arrangement would alleviate the financial pressures on Ms. Chaudhry, I note that there are allegations that Mr. Meh does not respect Ms. Chaudhry’s privacy. I am concerned about the possibility of ongoing stress and conflict if the parties are sharing two residences.
 I have another concern about the availability of other accommodation. Ms. Chaudhry is still recovering from her cancer and cancer treatments. She deposes that she tires easily. She does not feel physically capable of moving. On Mr. Meh’s nesting proposal, Ms. Chaudhry would, in effect, be forced into a mini-move weekly. Thus, even if alternative accommodation is secured and funded by Mr. Meh, I am concerned that the physical demands of relocating weekly are too much for Ms. Chaudhry at this time.
Any Violence Committed by a Spouse against the Other Spouse
 I accept that the violence contemplated by s. 24(3)(f) of the Family Law Act is not limited to physical abuse, but can include words and actions that constitute a “psychological assault upon the sensibilities of the other spouse to a degree which renders continued sharing of the matrimonial dwelling impractical”, or “psychological warfare”, intimidation and emotional abuse: Hill v. Hill,  O.J. No. 2297 (Ont. Dist. Ct.), at paras. 25-28; Kutlesa v. Kutlesa,  O.J. No. 1157 (S.C.) at para. 31.
 I have already described the incident of June 11, 2019. However, I place no weight on that incident in my analysis of this criterion. Both parties’ affidavits relate very different versions of events. Mr. Meh has some support for his version through an affidavit filed by his counsellor who deposes she was on the telephone with Mr. Meh during the incident. However, I am not prepared to draw any conclusions about what occurred on June 11, 2019 on the basis of the paper record in front of me, especially in view of the allegations Ms. Chaudhry makes that Mr. Meh’s counsellor is inappropriately involved in the parties’ dispute.
 Nor am I prepared to conclude that either’s party’s words or deeds rises to the level of violence towards the other that is contemplated by s. 24(3)(f). I cannot reach such a conclusion on a paper record when the affidavit evidence filed is completely at odds.
 Accordingly, I place no weight on the parties’ respective allegations of abusive behaviour and violence.
Nesting order vs. exclusive possession:
 It is clear, and the parties agree, that they must be physically separated. As a practical matter, I must choose between a nesting order or an order granting Ms. Chaudhry exclusive possession of the matrimonial home; those are the orders the parties before me seek.
 I conclude that Ms. Chaudhry shall have exclusive possession of the matrimonial home.
 In reaching my conclusion, I have taken into account the factors I review above. I have placed great weight on (i) the potential for ongoing conflict, which will not be in S’s best interests, if the parties continue to share the matrimonial home and a second short-term accommodation; (ii) Mr. Meh’s superior financial position that will allow him to obtain and maintain, over a longer term, suitable alternative accommodation in which he can appropriately parent S and facilitate her ongoing involvement in her school and local community. This will minimize the disruption to S from her parents’ physical separation; (iii) the current state of Ms. Chaudhry’s health and the burden it would place on her physically to relocate weekly if a nesting arrangement were ordered.
 Mr. Meh argued that a nesting arrangement would be appropriate in view of the s. 30 assessment because it would provide a level playing field for the parties during the assessment process, and that if either party failed to make the nesting arrangement work, the particulars of that failure would be available to the assessor and the court. I disagree that a nesting order is necessary for a level playing field during the s. 30 assessment, because Mr. Meh can afford suitable, alternative accommodations in which to parent S.
 Moreover, the disruption to S of having to move between her parents’ homes is inevitable. Even were I to order a nesting arrangement, it would only be temporary. S can begin to adjust to a new reality whereby she moves between two homes, and the s. 30 assessor can prepare her report having regard to the reality of the parties’ situation, where S moves between her parents’ homes and the parties must co-parent her from their own households.
 In the circumstances, it is appropriate to provide Mr. Meh with some time to arrange suitable alternative accommodation. I thus order that Ms. Chaudhry shall be entitled to exclusive possession of the matrimonial home beginning thirty days from the release of these reasons, and that she shall have exclusive possession of the matrimonial home until the parties agree otherwise or until further order of the court. Analysis: The above case is an excellent example of analysis in choosing an exclusive possession versus a nesting order and the circumstances for such cases. Clearly, these are circumstance based. It is important in crafting an affidavit that the parties wanting either an exclusive possession or a nesting order provide the facts to support either piece of relief. At Shankar Law, we are happy to assist and guide you through whatever challenges you have in your spousal and matrimonial life. As you work through your personal difficult circumstances of separation and divorce and matrimonial separation, we will work with you to guide and support you. We work primarily in three counties: Huron, Bruce, and Grey and span several cities (Southampton, Kincardine, Goderich, Wiarton, Hanover, Dundalk, Walkerton, Meaford, Markdale, Chatsworth), through our two locations in Port Elgin and in Owen Sound.