An Ontario court recently dismissed a claim that a father claimed against the mother of his child, claiming that he was a victim of sexual DNA theft.

What Happened?

The parties met at a music festival, where they were both working. The mother was 38 years old at the time, and the father was 23 years old.

The parties were ultimately together for approximately six months, during which time the mother became pregnant. The relationship ended before the birth of the child, but the mother wanted the father to be involved in the life of his child.

The father does not dispute that he is the child’s father, but he has not had any contact with the child since shortly after the child’s birth. The mother applied for custody and child support. The father initially responded by requesting access, but later changed his mind and informed the court that he was not going to pursue any contact with the child.

The mother filed a motion for summary judgment seeking an order that, among other things, the father pay child support based on the Child Support Guidelines, an order that the father pay his share of the child’s section 7 expenses, and that the father settle unpaid child support (i.e. arrears).

The Father’s Position

The father argued that although he was in a sexual relationship with the mother, the relationship had “strict terms of…sexual engagement” that included the agreement that “no form of the [father’s] DNA ejaculate was to enter the [mother’s] reproductive system”. The father further argued that the mother had told him that she was infertile.

The father claimed that he terminated all sexual activity with the mother after what he claims was a “hostile sexual act of DNA theft” of his ejaculate. The father further argued that this was a violation of Criminal Code Section 402.1. He did not pursue criminal charges for the alleged sexual violation, but used the mother’s alleged actions as a defense against paying child support.

Defences to a Parent’s Child Support Obligations

Justice O’Connell dismissed the father’s arguments, and found that:

There is no legal basis for the father’s attempt to create a new defence to child support.  The father’s claim that the mother committed a “hostile sexual act of DNA theft” does not alleviate his obligation to pay child support.

The Family Law Act (FLA), states that “every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in full time program of education to the extent that the parent is capable of doing so”.

The FLA recognizes only one defense to child support and it provides that a parent’s legal obligation to pay support does not extend to a child who is sixteen years or older who has withdrawn from parental control. However, this was not the case in this instance.

Justice O’Connell noted that the father was not pursuing criminal charges against the mother, but rather was pursuing a tort (i.e. civil wrong) claim. The Ontario Court of Justice has no tort jurisdiction, and an application for child support before the Ontario Court of Justice is not the appropriate forum in which to attempt to establish the tort of “hostile sexual act of DNA theft”.

Moreover, the judge noted that even if the father did pursue his claim in the proper forum (i.e. before the Superior Court of Justice), she was unaware of any other cases where a claim of “hostile sexual act of DNA theft” was made.

Similar Actions

In a decision that we previously blogged about, the Ontario Court of Appeal dismissed a civil claim brought by a father who alleged that the mother of his child had engaged in fraud, deceit, and fraudulent misrepresentation by becoming pregnant. The father had claimed that she had given him intentionally false representations to him about her use of birth control and her intention not to have a child. Based on these representations he had decided not to use a condom when they had sex, and that his consent to sexual intercourse had been negated by her fraud. He had subsequently sought damages for emotional and financial harm.

The Court of Appeal ultimately dismissed the father’s appeal all grounds, and specifically stated, that awarding damages for the father’s tort claim of “involuntary parenthood” would be contrary to the spirit and purpose of the family law system and would “run against the clear trend in the law moving away from fault based claims in the family law context.”

The Decision

The Court noted that, in this case, there was no dispute that the parties had engaged in consensual sexual relations without reliable birth control, and likewise no dispute that the father was the child’s birth father. The fact that the parties used the withdrawal method suggested that the father did not entirely believe the mother’s claim that she was infertile. In the court’s view, the father clearly assumed the risk of consensual sex without condoms or other reliable birth control.

The Court ultimately dismissed the father’s claim, finding that there was no genuine issue requiring a trial, and ruling that the father was legally obligated to pay child support.

Lessons Learned

Ultimately, parents cannot run away from their parental responsibilities, even where they claim that they were tricked into having a child, or that they did not intend to have one.

In this case, the Court pointed to another earlier decision in which the father had advanced a similar position. In that case, Justice Steinberg instructively stated:

The fact that the child was not wanted by him and that Darnell’s conception was a surprise to him is not a defence to this claim.  When parties engage in sexual relations, they are deemed to do so on the understanding that, however unlikely and however unanticipated, a pregnancy may result.  The fact that a subsequent birth may result should not detract from any of the responsibilities imposed by law on either parent.  In that regard, section 31 of the Family Law Act provides:

 

Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education to the extent that the parent is capable of doing so.

 

If you have questions about child support, child custody and access, or any other family law issue, contact the skillful and experienced family law lawyers at Gelman & Associates online or at (416) 736-0200 or 1-844-742-0200 for a confidential initial consultation.