Katrina Clarke | July 1, 2013 | National Post
Monica McGrath and Kent Kirkland are divorced parents of two young children. They live in one house with their children, call themselves friends and borrow sugar from one another.
The Edmonton family gained Canada-wide recognition this month after media attention turned to their family set-up and living arrangements. Part of this attention was due to their custom-built “transporter” house, with two separate sides and a hallway connecting them, but also because they’re doing what many separated couples say they want to do; put the kids first.
“I still consider us a family. We have kids together, we’re still connected,” says Ms. McGrath of her ex-husband. “We need to together raise our kids, no matter what our situation is. This home allows us to do that.”
Their family model is a version of a “bird’s nest” arrangement where children stay in the house, while separated or divorced parents come to them. Some see this as a model that helps minimize disruption for children. It means they don’t have to be uprooted, trekking from one parent’s house to another’s on a regular basis. Although this model is still rare, experts say it has become increasingly common over the last 10 years.
Not everyone is convinced it is a viable arrangement in the long-term, but a growing number of separated couples are testing out this version of shared custody.
In the Edmonton case, which caught the attention of family lawyers nationwide, the family moved into their new shared-yet-separate home last fall and plan to keep the arrangement until the kids, now 11 and eight, finish high school.
The adults live on separate sides of the house with a wall between them. Their children’s bedrooms are at one end of the house and connect to both sides through a hallway with a door to mom’s side and a door to dad’s side. The parents alternate childcare week by week. When it’s one parent’s week, the other locks their hallway door.
“They’re both a lot happier now,” Mr. Kirkland says of their children. “Now if they want to see mom, it’s really easy for them to do it.”
The ex-couple mostly communicate by text and rarely actually see each other.
“It’s no different [from living across town] in the sense of being able to come and go and have my own life,” Mr. Kirkland says.
They separated in 2010 and have already crossed the hurdle of dating other people, though both are currently single. Ms. McGrath and Mr. Kirkland say that their family arrangement takes priority and that a new partner would need to respect this.
But as might be expected, there are cons that come with living next door to your ex.
“The emotional side of things…” says Mr. Kirkland. “As Monica put it, there are still feelings and not all of them positive feelings.”
They’re not advocating divorce, and acknowledge this model may not be for everyone, but so far the house has been a “brilliant” improvement for them.
Some experts are skeptical of the likelihood this arrangement can last. Philip Epstein, a senior partner at Epstein Cole, puts it simply: “By experience, most of us have found nesting on a long-term basis does not work,” he says.
Mr. Epstein says the Edmonton family arrangement sounds interesting and “idyllic” but it would rarely work. “Parties usually aren’t able to move to their highest and best selves in the face of a separation,” he says.
In spite of this, he still sees short-term bird’s nest arrangements as becoming common for resolving custody disputes.
This arrangement typically involves the children staying in the matrimonial home, the parents living in separate residences, such as apartments, and each spending 50/50 time with the child.
As the editor-in-chief of the Reports in Family Law, Mr. Epstein says he sees about one short-term bird’s nest agreement for every 500 cases across Canada.
But this number is likely higher. If parents go to mediators or make arrangements on their own, Mr. Epstein wouldn’t hear about their stories.
Lorne MacLean, a senior family lawyer based in Vancouver, says whereas this arrangement likely wouldn’t exist a decade ago, now nearly 10% of his cases result in bird’s nest arrangements.
Mr. MacLean says he has seen more fathers asking for bird’s-nest orders as there are increasing numbers of fathers who want to be involved in their children’s lives.
Mr. MacLean says 50% of the cases he sees are shared custody cases.
Time and time again I have seen cases — and this is one — where the children are being treated as Frisbees
“[Bird’s nest] is probably the ultimate shared custody because you are sharing the same residence as well as sharing the time with the children,” he says.
One of the so-called groundbreaking cases in Canada for bird’s nest custody came with the 2003 Greenough v. Greenough case, heard in St. Catharines. The judge ordered a temporary bird’s nest arrangement, even though neither party had requested this.
The parents had split up in 2001 when the children were just two-and-a-half and four-months-old. In court, both parents were seeking custody, according to court documents.
The trial began in October 2003 but there was a delay and the earliest return date was March 2004. The judge was concerned about the number of transitions the children would need to make in the interim. After learning of a bird’s nest arrangement from a 2000 case in Virginia, the judge decided to issue a temporary order requiring the parents to visit the children, rather than vice versa.
“Time and time again I have seen cases — and this is one — where the children are being treated as Frisbees,” said Justice J.W. Quinn, according to court documents. “Undoubtedly this will cause a host of inconveniences for the parties, but I am confident that all of them can be resolved; the children are worth the trouble.”
But Mr. MacLean says judges are not always “enamored” by bird’s nest arrangements, as they can bring up privacy issues. In one case Mr. MacLean was involved with, a parent actually installed cameras in the residence to check up on the other parent, he says.
In his experience, bird’s nest arrangements are usually only short-term and are ordered by a judge for the interim. When a trial is over, sometimes eight to 10 months later, the arrangement usually ends, he says.
But these days, there is no one family model, and parents can come up with some very creative ways of rebuilding their families after separation, says Cate Cochran, a Toronto-based radio producer and writer. She is the author of Reconcilable Differences: Marriages End, Families Don’t, a book about 10 families with “successfully failed” marriages, including one family who had a bird’s nest arrangement.
She says since writing the book, Canadians have contacted her to say they’re grateful someone shared their story about reconfiguring their unique family arrangement, like starting a bird’s nest arrangement.
“I keep getting letters from people who say they found the book and they didn’t know anyone else who was doing it,” she says. “That helped them to know they weren’t alone in the wilds doing it themselves.”
One of the first families profiled in her book is that of now-Ontario Premier Kathleen Wynne. After Ms. Wynne and her ex-husband split up, they decided to still live together, along with their children and Ms. Wynne’s new girlfriend. She and her ex were committed to seeing the kids on a regular basis and her husband lived in the basement. Eventually a second home was purchased but it was still connected to the other home through a yard.
“She’s amazing. I think she’s a very innovative, brave, creative person,” Ms. Cochran says. “She and her whole family.”
Ms. Cochran herself had a version of a nesting arrangement after she and her ex-husband split up in 2003. The separated couple bought a house where Ms. Cochran lived downstairs, her former husband lived upstairs and the kids and dog had their run of the two spaces.
“It just takes being a grown up, really,” she says. “We wanted to raise our children together… We were good co-parents but we weren’t really meant to be together.”
This arrangement lasted about eight years. Her ex-husband has now remarried and moved out but she still lives in the home with her two children, now 20 and 24.
It just takes being a grown up, really
She refers to her family’s arrangement as an “all in the same nest” model and says it worked out great for them. But she acknowledges a classic bird’s nest arrangement would be difficult to maintain.
“It means that parents are doing what we require kids to do, which is move from house to house,” she says. “It’s a good lesson in why… [kids] don’t like it.”
“You have to keep uprooting yourself.”
Victoria Smith, a Toronto-based collaborative lawyer and mediator, says the majority of her cases involve short-term nesting arrangements during the separation negotiations.
However, she worked with one client with five children who maintained a bird’s nest arrangement with her ex for two years.
“She felt the parents should just suck it up,” she says. “They should deal with the challenges for the benefit of the kids.”
Ms. Smith says her client’s motivation was initially driven by philosophical reasons but over time, the arrangement became impractical.
Things like who does the laundry, takes out the garbage and buys the groceries at the children’s house can become sources of tension, Ms. Smith says. It can also be expensive to maintain three separate residences. The family who made it work for two years was a high-income family, she says.
They should deal with the challenges for the benefit of the kids
For others, while it might make financial sense to rent two apartments in the short-term while financial details are being sorted, it may no longer be desired or viable post-divorce. Ms. Smith says there are alternative options to renting two apartments, such as staying at a relative’s house, or sharing one secondary residence between the two parents, but those situations come with their own challenges.
Though bird’s nest arrangements can be complex, for some, they just work. The proof is in the kids.
Ms. Cochran recalled the story of her daughter telling her she wanted to get a tattoo when she turned 18.
“She said, ‘Well I think what I’d like to do is I’d like to get a key tattooed on my arm. To symbolize one key, that we only needed one key to come home to mom and dad,’” Ms. Cochran says. “It was her way of saying, ‘This was really important to me.’”
“[The kids] never really lost anything, because we were always there.”