Court File and Parties

Court File No.: FS-25-00046956-0001 Date: 2025-10-07 Superior Court of Justice – Ontario

Re: Rachel Berkovich, Applicant And: Nadine Amanda Salz, Respondent And: Benjamin Lawrence Harris, Non-party

Before: C. Horkins J.

Counsel:

• Lisa Allegro and Sima Hashemi, for the Applicant
• Ilana Zylberman Dembo and Courtney Palmer, for the Respondent
• George Karahotzitis and Adrienne N. Novak, for the moving non-party

Heard at Toronto: September 30, 2025

Reasons for Decision

Overview

[1] Benjamin Lawrence Harris ("Ben") brings a motion for an order adding him as a respondent in this proceeding or, alternatively, an order granting him leave to intervene in the proceeding.

[2] Ben and the respondent Nadine Amanda Salz ("Nadine") have a child ("Cole") who is now 8 years old. Ben and Nadine separated in early 2020 and lived together until around December 31, 2021. They remain very good friends and cooperative co-parents of their child. They live within walking distance of each other and have a week about parenting schedule. They eat dinners and vacation together. Their relationship since separation is unusually close and cooperative.

[3] Nadine and the applicant Rachel Berkovich ("Rachel") lived together from around May 1, 2022, until May 13, 2024.

[4] On July 2, 2022, Nadine gave birth to Rumi, who was conceived with the help of a sperm donor and in vitro fertilization. Rachel was present for Rumi's birth. Her name is not on Rumi's birth certificate. Rumi is now three years old.

[5] Nadine and Rachel's relationship ended on May 13, 2024. On June 30, 2024, Nadine refused to allow Rachel any access to Rumi but later permitted her to see Rumi for two hours per week and during a few overnight stays. As a result, Rachel commenced an Application in the Ontario Court of Justice in July 2024. This Application was transferred to the Ontario Superior Court of Justice in March 2025.

[6] Rachel and Nadine do not agree on the nature and extent of their relationship. Rachel states she was involved in the care and upbringing of Rumi until separation. Nadine disputes this evidence. Rachel and Nadine do not agree on whether they were spouses at the time of Rumi's conception pursuant to s. 8(1) of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (the "CLRA"). Rachel seeks a declaration of parentage and parenting orders that include parenting time and decision-making authority.

[7] After Rumi's birth, Nadine and Ben included Rumi in their close co-parenting relationship. Cole's week about schedule is structured so that he spends time with each parent and Rumi virtually every day. Other than Thursdays and Sundays when Rumi visits with Rachel, Nadine, Ben, Cole, and Rumi are together from after school and daycare until bedtime. They eat dinner together, talk about the day, play, go on outings to the park, and share other child-focused activities. On Thursdays when Rumi returns from seeing Rachel, Ben and Cole go to Nadine's home so that the children can see each other before bedtime and do not go an entire day without a "touchpoint". The four of them spend Friday Shabbat dinner together. On weekends they spend even more time together. They spend time together at Nadine's family cottage, go skiing, and vacation together.

[8] Rumi has a bedroom at Ben's home, and she sleeps over one to two times a month. Ben's home is stocked with Rumi's favorite snacks, clothes, diapers, and other supplies she needs while at his home. The children are best friends and have developed a close sibling bond.

[9] Recently, Rachel and Nadine agreed to a s. 30 assessment. Ben is participating in this assessment.

Legal Framework and Positions of the Parties

[10] Under s. 21(1) of the CLRA, a parent of a child or "any other person other than a parent of a child" can apply for parenting time or decision-making responsibility with respect to a child.

[11] Ben seeks to be added as a party under s. 62(3)(b) or (c) of the CLRA, which states the following:

The parties to an application under this Part in respect of a child shall include,

a) the child's parents;

b) a person who has demonstrated a settled intention to treat the child as a child of his or her family;

c) a person who had the actual care and upbringing of the child immediately before the application; and

d) any other person whose presence as a party is necessary to determine the matters in issue.

[Emphasis added.]

[12] Rule 7 of the Family Law Rules, O. Reg. 114/99, deals with who must be named as party and the power of the court to add a party. The following excerpt from r. 7 is relevant to the motion:

(3) A person starting a case shall name,

(a) as an applicant, every person who makes a claim;

(b) as a respondent,

(i) every person against whom a claim is made, and

(ii) every other person who should be a party to enable the court to decide all the issues in the case.

(4) In any of the following cases, every parent or other person who has care and control of the child involved, except a foster parent under the Child, Youth and Family Services Act, 2017, shall be named as a party, unless the court orders otherwise:

1. A case about decision-making responsibility, parenting time or contact with respect to a child.

(5) The court may order that any person who should be a party shall be added as a party, and may give directions for service on that person.

[13] The court's power to add a party under r. 7(5) is discretionary. The rule gives no direction as to how the court should exercise its discretion in adding parties to an application. In Children's Aid Society of London & Middlesex v. P. (J.), at para. 4, the court commented on this lack of direction as follows:

If rule 7(5) is intended to give the Court broad discretion to add parties who have no legal interest in the issues before the court, then that discretion ought [to] be exercised very sparingly. Family court cases would become unwieldy if courts exercise a broad discretion to add parties who have an interest in the outcome but who are not legally affected thereby.

[14] In Worrall v. Worrall, 2012 ONSC 4388, at para. 32, the court set out a list of non-exhaustive criteria to consider:

By way of summary, the following criteria, which are not exhaustive, can be applied to determine when a person should be added as a party pursuant to subrule 7(5) of the Family Law Rules:

a) Is the person a "necessary" party to determine all issues in the case;

b) In determining "necessity", it will be unlikely that necessity can be established if the proposed party has no "legal interest" in the case, meaning that no order can be made for or against, the proposed party;

c) In a circumstance where a proposed party has no legal interest in the case, the court may exercise its discretion to add the proposed party in situations (and this list is not meant to be exhaustive) where there are unusual facts, there is evidence of some collusion between the parties in the matrimonial proceeding or the case is egregious. The exercise of the discretion to add parties in these circumstances should be exercised very sparingly.

[15] The criteria in Worrall were applied in Reeves v. Cooper, 2018 ONSC 7137, at para. 28.

[16] In A.C.V.P. v. A.M.T., 2017 ONSC 7031, at para. 4, and Zadeh v. Poorsina, 2020 ONSC 4164, at para. 6, the courts set out slightly different criteria as follows:

a) no party should be added unless an order could be made in favour of, or against, such person;

b) a party should only be added if his/her presence would assist the Court in resolving the issues in the case; and

c) a party should not be added if the applicant's claims against the current respondent can properly be adjudicated without the proposed added party.

[17] Finally, the court must consider the primary objective of the Family Law Rules as set out in r. 2(2) to (4):

(2) The primary objective of these rules is to enable the court to deal with cases justly.

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

(4) The court is required to apply these rules to promote the primary objective, and parties and their representatives are required to help the court to promote the primary objective.

Ben's Position

[18] Ben describes his role with Rumi as "akin to a secondary parent". He states that he should be a party in the Application because he is a "person who has demonstrated a settled intention to treat [Rumi] as a child of his or her family" and he is "a person who had the actual care and upbringing of [Rumi] immediately before the application".

[19] As a person under s. 62(3)(b) and (c), Ben states that he has a right to be heard as set out in J.F.R. v. K.L.L., 2024 ONCA 520, at para. 23:

The audi alteram partem principle, which is a rule of natural justice and one of the tenets of our legal system, requires that courts provide an opportunity to persons who are affected by a court's decision to be heard: A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536, at para. 27; see also Fontaine v. Canada (Attorney General), 2018 ONCA 1023, at para. 21. The failure to do so results in a breach of natural justice.

[20] As a result, Ben's position is that Rachel must add him as a respondent to her Application or the court should add him as a respondent pursuant to r. 7(5). If he is not added as a party, Ben states that he will start his own Application and that such an Application would inevitably be tried with Rachel's Application.

[21] Alternatively, Ben states he should be granted leave to intervene in Rachel's Application.

Rachel's Position

[22] It is Rachel's position that Ben has no legal basis for being added to this Application. He is Cole's father and a "familiar adult" in Rumi's life. He has never held a parental role or been responsible for Rumi's daily care, supervision, or decision-making. He has no legal interest in the Application and merely echoes the position of Nadine in this Application. Ben's involvement with Rumi is incidental to the parenting plan that he has with Nadine for Cole.

[23] Rachel fully supports the bond between Cole and Rumi and will do "everything" she can "to preserve it".

[24] Rachel is "genuinely confused" about what Ben would be seeking if added as a party. She is concerned that, if added, he will only "mirror" Nadine's position that seeks to exclude her from Rumi's life.

Nadine's Position

[25] While Nadine and her counsel were present at the motion, she did not file any material for this motion and made no submissions.

Analysis

[26] Rachel is confused about what relief Ben would seek if added as a party. Her confusion is understandable. Ben asks the court to order that Rachel add him as a respondent, but Rachel has no claims to advance against Ben. Similarly, he has no right to seek relief from her.

[27] Alternatively, Ben submits that the court should add him as a respondent, and in his Answer, he would advance his claims. But what are his claims? In his August 27, 2025, affidavit he describes his concerns and reasons for his motion as follows:

26. The Applicant ultimately seeks an order declaring that she is Rumi's parent and for equal decision-making of Rumi. If she is successful, this would obstruct the time that Rumi spends in my care and with Cole, and limit my role as a parent to Rumi and my ability to promote Rumi and Cole's best interests. It will have a detrimental impact on my family and on both children.

27. I am very concerned that if Rachel is awarded more time with Rumi, this will have serious adverse impacts on both Cole's and Rumi's emotional and psychological well-being, as well as their sense of security and stability with each other and our family unit. I am deeply concerned that our family unit will be torn apart if Rachel has more time with Rumi, and the thought of this keeps me up at night.

28. It is in Rumi's best interests that I be given parenting time or contact with Rumi that is consistent with the status quo, and that any parenting orders sought by either party or considered by the court should take into account how such an order will affect Rumi's relationship with me, Cole, and my family. If I am not added as a party to this proceeding, I will have no choice but to commence an application to maintain and protect these relationships that are integral to Rumi's day-to-day care.

29. … I seek to maintain our stable family dynamic, my care and control of Rumi, and I believe that the children need to continue spending time together as much as possible. I have a legal interest in advancing Rumi and Cole's best interests in this matter and a right to be heard in this proceeding.

30. The claims in this proceeding cannot be properly determined if I am unable to present evidence and advance my position regarding Rumi's best interests, which include my evidence about Rumi's relationship to Cole, me, my family, and her life in my household. Furthermore, Rachel and Nadine have consented to a s. 30 assessment. Any assessment about Rumi's needs that does not include my input will be incomplete.

31. Given the Applicant's opposition to adding me as a party, I am left with no choice but to bring a motion to the court seeking this relief.

[28] In his reply affidavit dated September 8, 2025, Ben adds:

4. I have brought this motion to be added as a party because Rachel commenced an action for decision-making and parenting time with Rumi, but failed to add me as a party despite my role as Rumi's caregiver since her birth, and omitted me and Cole from any plan of care for Rumi. I seek to promote Rumi's best interests by protecting her strong bond with me and Cole. To do so, I must be a party to these proceedings.

[29] In essence, Ben wants his family dynamic to remain as is. He wants to be added as a respondent to ensure that Rachel's claims do not disturb this status quo. He does not say in his affidavits that he wants more time with Rumi, that he wants decision making authority for Rumi, or that he will seek a declaration of parentage. During the hearing of this motion, Ben's counsel stated that Ben will seek parenting time, decision making authority, and possibly advance a parentage claim for Rumi. However, this is not what Ben states in his evidence.

[30] The evidence does not show that Ben has demonstrated a settled intention to treat Rumi as a child of his family. Ben's time with Rumi flows from the joint parenting that Ben and Nadine have for Cole and their desire that the two children have a close relationship. Ben's affidavit details the regular time that they spend together.

[31] I recognize that Ben and Rumi have a close and loving relationship and that he has been very involved in many parts of Rumi's short life, including meals, playtime, family get togethers, religious holidays and vacations. With the rare exception, Nadine is present when Ben is with Rumi. Before Nadine and Rachel separated, Rachel states that she was also part of these family gatherings and the regular routine.

[32] There is no evidence that Nadine and Ben have made any major or non-major parenting decisions for Rumi together or even discussed such decisions. Ben admits that "Nadine has always made decisions regarding Rumi". There is no evidence that Ben was involved in choosing a family doctor or dentist for Rumi nor any evidence that he attends any of the medical or dental appointments with or without Nadine. On occasion Ben picks up Rumi from daycare. There is no evidence that he was involved in the decision to choose the daycare. There is no evidence that he has been involved in choosing a school that Rumi will attend.

[33] Ben says that he disciplines Rumi when necessary and is stern if she does not follow instructions. The frequency of any need to discipline is unknown. Further, he does not state why he has had to discipline Rumi and if Nadine was with them at the time. The fact that he may have disciplined Rumi, at some point, is not sufficient to create a settled intention to treat her as a child of his family. Caregivers at a daycare and teachers may discipline children and there is obviously no such settled intention.

[34] There is no evidence that Ben has financially contributed to Rumi's needs. In Nadine's Answer, she states that she has "borne the primary responsibility for Rumi's expenses throughout her life".

[35] In summary, despite the evidence that Rumi has been integrated into the parenting plan for Cole and the close relationships that have developed, the evidence as a whole does not show that Ben has demonstrated a settled intention to treat Rumi as a child of his family.

[36] Turning to s. 62(3)(c), I find that Ben is not a person who had the actual care and upbringing of Rumi immediately before the Application. Rachel and Nadine separated on May 13, 2024. Rachel issued her Application in the Ontario Court of Justice on July 3, 2024. As already noted, Ben's time and involvement with Rumi, while important, has always flowed from the unique parenting plan that is in place for Cole that prioritized the children spending time together and maintaining a close bond. Furthermore, until separation, that was less than two months before the Application was issued, Rachel, Nadine, and Rumi lived together. And as Rachel states in her affidavit, she was "a fully involved parent since Rumi's birth including her day-to-day care such as feeding, sleeping, and daycare", until separation when Nadine unilaterally restricted her parenting time.

[37] Ben is concerned that if Rachel is awarded more parenting time this will have serious adverse impacts on both children and a detrimental impact on his family. Based on Rachel's evidence, she was involved with both children before separation because she attended many of the family activities that Ben attended. There is no evidence from Ben that her involvement before separation negatively impacted the children. During the past winter, Rachel had three overnight visits with Rumi. Ben states that after these overnight visits Rumi was anxious, clingy, and emotional, and the change in her demeanour was stark. Based on his observations, he says that Rachel is destabilizing for Rumi. It is equally possible that any changes in Rumi's demeanour flow from not seeing Rachel on a regular basis.

[38] Ben's motivation to maintain the status quo appears to ignore the fact that Nadine has a new partner. While there is minimal evidence about this relationship, it is conceivable that this new partnership could introduce more children and change the family dynamics between Ben, Nadine, and the children.

[39] Ben does not want to disturb the close bond and relationship between Cole and Rumi. He assumes that if Rachel obtains parenting orders that this bond will be disturbed. First, this is an assumption, and secondly, it is not a reason to include Ben as a party. Adding Ben as a party is not a solution to address "serious adverse impacts" that he thinks might happen in the future. Further, there is no reason to assume that the bond between the children will be adversely affected if they spend less time together.

[40] Since their separation, Ben and Nadine have had an unusually close and cooperative parenting relationship for their son Cole. Like many partners who separate, Nadine moved on to other relationships; first with Rachel and now with a new partner. A new relationship can impact the former relationship. When children are involved, the family dynamics can be more challenging. Responsible parents do their best to ensure that this challenge does not negatively impact the best interests of the children. This is not a new challenge in the world of family breakdowns and re-partnering. This is the challenge that Ben is dealing with. If the children do struggle because of a change in the family dynamics, doctors and counselors are available to assist Ben and Nadine if needed.

[41] Ben does not have to be added as a party to ensure that his voice is heard. He is participating in the s. 30 assessment and may be a witness at trial if the matter is not resolved.

[42] Turning to r. 7(5), whether the criteria in Worrall or A.C.V.P are used, the analysis does not support Ben's request to be added as a respondent. Based on the above analysis of s. 62(3)(b) and (c), the court could not make an order in his favour or against him. His presence as a respondent would not assist the court in resolving the issues between Rachel and Nadine, and those issues can be properly adjudicated without him being added. He does not have a "legal interest" in the application.

[43] In Gilmour v. Gilmour, [2009] 68 R.F.L. (6th) 417 (Ont. S.C.), at paras. 5, 14, and 17, the Court stated that the threshold for adding a party under subrule 7(5) is not whether a person has a general interest in the outcome or possesses relevant evidence, but whether they are truly necessary to the determination of the issues. The Court cited with approval authorities holding that a person is unlikely to be considered a necessary party if there is no cause of action against them and emphasized that the mere fact someone may be affected by the outcome is not, on its own, sufficient to justify party status. A necessary party is one without whom the Court cannot properly adjudicate the matter or grant complete relief among the existing parties.

[44] Worrall and other decisions state that the court has the discretion to add a proposed party who has no legal interest in the case, but such discretion should be exercised very sparingly. This is not a case where such discretion should be exercised. I am mindful of the primary objective of the Family Law Rules to deal with cases justly as set out in r. 2. As outlined in r. 2(3), this includes ensuring fairness to all parties, saving time and expense, managing cases in proportion to their importance and complexity, and making efficient use of court resources. Under r. 2(4), the Court is required to apply the Rules in a manner that promotes this objective. Permitting individuals with no legal standing to be added as parties or intervene in a family law matter, based on their emotional connection or alignment with one parent, undermines the primary objective of the Family Law Rules. Allowing Ben's participation would expand the litigation without necessity and duplicate Nadine's position. It would also set a concerning precedent, opening the door for others in blended or extended families to seek party status without legal entitlement.

[45] It is striking that there is no decision provided where a partner/parent from the first relationship is added as party in a dispute between his ex-partner and the person she partnered with after leaving the first relationship.

[46] The cases that Ben relies upon for his motion are distinguishable as set out below.

[47] In Ball v. McKenzie, 2021 ONSC 1150, the mother and father lived together with their child and a second child that the mother had during a previous relationship. In this case there was "little doubt" that the father had demonstrated a "settled intention" to treat the second child as his own. This was not a case about whether he should be added to the litigation. The father was a party, and the issue was what parenting time he should have with the second child.

[48] Van Scoy v. Leblanc, 2024 ONCJ 563, is not a decision about adding a party to an application. This was a motion that the birth father brought for parenting time and primary residence of the child. The child resided with the stepmother, who was the father's ex-girlfriend.

[49] Hicks v. Geist, 2022 ONSC 5671, is not a decision about adding a party to an application. The applicant brought a motion seeking contact and a graduated increase of parenting time for a child for whom he had demonstrated a settled intention to assume the role of a parent for many years. The evidence "was beyond challenge" that the applicant stepfather and respondent mother resided together and jointly participated fully in parenting the child.

[50] Sarana et al. v. Bains et al., 2023 ONSC 6283, is not a decision about adding a party to an application. This was a motion by the applicants for security for costs from the added party, who was the child's paternal grandmother. The child had been under her grandmother's care for various periods for over three and a half years.

[51] In Johnstone v. Brighton [2004], the mother sought an order to relocate with the child and live with her new partner in the United States. Her new partner would assume the entire financial responsibility for the mother and child and all expenses to provide the birth father with access. If the mother did not relocate her financial circumstances would have been far less stable. The new partner was added by the court under r. 7(5) because he was a person who would enable the court to decide all the issues in the case. Without this partner's financial support, the court noted that the mother had "no case" for relocating. The court wanted to ensure that his verbal assurances could be confirmed in an order with the partner as a party.

[52] In Azougarh v. Maliakkal, 2010 ONCJ 610, the parties were former spouses and had a teenage son with special needs and an addiction. Both parents had re-partnered. The birth mother was seeking to change what was then called custody. She wanted sole decision-making over the treatment that the child required and was seeking special expenses for this treatment. The issue was whether the new partners had demonstrated a settled intention to treat the child as a child of his or her family. The new partners were added to the application because there was compelling evidence of the settled intention.

[53] Ben's alternative relief is a request for leave to intervene in the Application. He states that leave to intervene addresses two shortcomings of the dominus litus principle, both of which apply in this proceeding: 1) The applicant sought contact and an expansion of parenting time with a child a person has an important interest in, or stands to be seriously affected by, the litigation but does not qualify as a "necessary party"; and 2) the existing parties may fail to present important perspectives or legal arguments that should inform the court's decision-making.

[54] A motion for leave to intervene as an added party is governed by r. 13.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides:

(1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,

a) an interest in the subject matter of the proceeding;

b) that the person may be adversely affected by a judgment in the proceeding; or

c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.

(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.

[55] Where the Family Law Rules do not cover a matter adequately, r.1(7) of the Family Law Rules authorizes the Court to give directions and refer to the Rules of Civil Procedure.

[56] On a motion for intervention, the matters to be considered are the nature of the case, the issues which arise, and the likelihood of the proposed intervenor being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties. Where intervention is sought in private dispute, such as family law litigation, as opposed to one involving the state, the standard to be met by the proposed intervenor is "more onerous or more stringently applied": Foster v. West, 2021 ONCA 263, at paras. 10-11.

[57] Ben submits that he has a direct interest in the subject matter of this proceeding: Rumi's best interests, Rumi's parenting time, and decision-making for Rumi. He says that his position and evidence is necessary in this proceeding, particularly given Justice Hood's finding on a previous motion that Rachel and Nadine have a completely different version of events about their relationship, Rumi's conception, and everything in between.

[58] Ben does not meet the criteria for leave to intervene. He has no legal interest, no distinct legal argument to offer, and this is not a public interest case. If his evidence is necessary, then he can provide such evidence as a witness at trial or through his participation in the s. 30 assessment. Ben's position is aligned with Nadine's, which is already before the court. Ben's proposed intervention would add complexity to a focused family law dispute, without offering a distinct legal perspective or a basis for judicial relief. His involvement would not assist the court but would rather risk unnecessary delay and distraction from the central issues between Rachel and Nadine.

[59] For these reasons, leave to intervene is denied.

Orders

[60] I make the following orders:

1. Benjamin Lawrence Harris' notice of motion dated August 27, 2025, is dismissed.

2. The parties shall make all reasonable efforts to resolve the costs of this motion. If costs are resolved, the parties shall inform the court at Michelle.giordano@ontario.ca

3. If costs cannot be resolved, the parties shall exchange brief cost submissions and file them with the court and Michelle.giordano@ontario.ca no later than October 14, 2025. Late cost submissions shall not be accepted.

C. Horkins J.

Date: October 7, 2025