The Ontario Court of Appeal recently upheld the dismissal of a claim filed by a man who sued his former sexual partner after she became pregnant with his child. The man had alleged that the woman had deprived him of being able to choose when to have a child and wanted more than $4 million in damages for “non-pathological emotional harm of an unplanned parenthood”. In 2016, the man’s first lawsuit was dismissed, with the original trial judge finding no legal basis for the claim. The man subsequently appealed to the Court of Appeal, which dismissed the appeal and awarded the woman $8,000 to cover some of the legal costs she incurred.

The History of the Parties

The parties met through a mutual friend in 2014 and engaged in a short sexual relationship that lasted less than two months. The man (PP) understood that the woman (DD) was actively taking the birth control pill and that she did not intend to have a child with him. Several weeks following the end of their relationship, DD informed PP that she was 10 weeks pregnant. Paternity testing confirmed that PP is the father of the child. DD gave birth in early 2015.

The Original Claim and Decision

In July 2015, PP sued DD for deceiving him into having recreational sexual intercourse, which resulted in a child. The suit cited fraud, deceit and fraudulent misrepresentation, and claimed that DD’s deception “deprived him of the benefit of choosing when and with whom he would assume the responsibility of fatherhood”. PP asserted that “he wanted to meet a woman, fall in love, get married, enjoy his life as husband with his wife and then, when he and his wife thought the time was ‘right’ to have a baby”. He further argued that he had consented to sexual intercourse with DD on the understanding that she was using an effective form of birth control, and would, therefore, not become pregnant. PP claimed that DD’s assertion about birth control was a misrepresentation, which therefore negated PP’s consent since the consent had been obtained through “deception and dishonesty”. PP claimed $2 million in general damages, $2 million for unspecified special damages, and $25,000 in punitive damages. The original trial judge noted that PP was not seeking to avoid his child support obligations, which he had been paying. Likewise, PP was not claiming that the emotional harm he suffered was at the level of a recognized pathological psychiatric illness (i.e- clinical depression or PTSD) but was seeking the damages “just because he has been non-pathologically emotionally harmed by his unplanned fatherhood”. The original trial judge went on to criticize the lawsuit, stating that:

…there are several causes of action arising from what happened to PP that might in some circumstances support a claim for emotional harm from unplanned parenthood. However, instead of employing those causes of action, PP has twisted and distorted the tort of fraudulent misrepresentation, normally an economic loss tort, into a novel emotional harm cause of action. In my opinion, it is plain and obvious that fraudulent misrepresentation is not the legal vehicle for a claim for the emotional harm arising from unplanned parenthood. I, therefore, [deny his claim for fraudulent misrepresentation].

The Judge went on to discuss whether PP ought to be able to file a new claim based on grounds that would suport his emotional harm claim, such as sexual battery. However, the Judge concluded that:

…[i]n my opinion, it is plain and obvious that there is no legally viable cause of action for sexual battery for compensation for the non-pathological emotional harm caused by unplanned parenthood…

PP was not permitted to amend his claim to cite sexual battery as grounds for his lawsuit, and the matter was dismissed. He subsequently appealed the decision to the Court of Appeal.

The Court of Appeal Decision

The two questions the Court of Appeal considered were:

• Can PP as an “aggrieved father” recover damages from DD, the mother, for involuntary parenthood?
• Can the alleged fraudulent misrepresentation about DD’s use of birth control negate PP’s consent to sexual touching such that a successful sexual battery claim can be made?

Damages for Involuntary Parenthood

The Court of Appeal found that PP had not established a viable claim for recoverable damages, repeating the original trial judge’s findings that the claim should not have been filed as a fraudulent misrepresentation action:

Although it was not presented in this way, the claim can be viewed as a tort claim for involuntary parenthood made by one parent against the other. It is clear that the alleged damages do not relate to a physical or recognized psychiatric illness. In essence, the damages consist of the appellant’s emotional upset, broken dreams, possible disruption to his lifestyle and career, and a potential reduction in future earnings, all of which are said to flow from the birth of a child he did not want [emphasis added]. Although the claim is not for the direct costs associated with raising the child, all of the damages claimed by the appellant are the result of consequences flowing from the unwanted birth of a child, albeit unwanted only by the father.

The Court of Appeal recognized that there have been a number of cases involving involuntary parenthood both in Canada and in other jurisdictions. Generally, such cases involve lawsuits brought by parents against doctors or other health care providers whose negligence resulted in the unwanted birth of a child (for example, where a father had a vasectomy and a couple was told contraceptive precautions were no longer necessary, but who subsequently became pregnant).  Financial recovery in those types of cases is usually limited to any damages suffered as a result of the pregnancy and birth of the child, not for the costs associated with becoming a parent or raising a healthy child. The Court of Appeal noted that this was not a claim made by unwilling parents against a third party, such as a doctor. Rather, it was a claim made by one parent against the other parent with whom legal and moral responsibility for maintaining a child was shared. To award damages in such a situation would be “contrary to the spirit and purpose of Ontario’s statutory family law regime” which has moved away from a fault based system, particularly in divorce and child support matters:

It would be contrary to the spirit, purpose and policy reflected in Ontario’s no-fault child support regime to view parents as equally responsible for maintaining a child but, at the same time, to allow recovery by [PP] against the mother for the loss purportedly suffered by him as a result of that responsibility, which loss would presumably increase as he devotes more of his time and resources to the child’s upbringing.

In other countries, such as the U.S., claims in which a father has attempted to recover damages from a mother due to false representations made about birth control have also been “universally rejected”. The Court, therefore, did not award damages to PP for involuntary parenthood.

Potential Claim of Sexual Battery

PP had also claimed, on appeal, that DD’s misrepresentation about her use of birth control had negated his consent to sexual intercourse. The Court of Appeal reviewed caselaw on the issue of battery, noting that the offense of battery is intended to protect the “personal autonomy of the individual” and the “right of each person to control his or her body and who touches it”. Where this right to personal autonomy is violated, financial compensation is warranted. In order to establish a successful battery claim, the person making the claim must prove that another person has intentionally touched them, and that this touching was “harmful” or “offensive”. In defense, the person who is accused of violating the accuser’s physical autonomy can show that there was consent. If consent is established, then there is no violation, and therefore no claim can be made for battery. Similarly, to establish a sexual battery claim, the person making the claim must establish that another person has touched them in a sexual manner. In sexual battery claims, the “harmful” or “offensive” element is implied where there is a lack of consent. There are some actions that will negate consent to sexual activity, such as dishonesty (including non-disclosure of important facts). For instance, in a previous case, the Supreme Court of Canada clarified that dishonesty about contraception might negate consent to sexual touching; however, only where the dishonesty leads to a “significant risk of serious bodily harm”. The Supreme Court ultimately found that “financial deprivations” or “mere sadness or stress from being lied to” will not be sufficient to establish lack of consent. In this case, the Court of Appeal found that:

[PP’s] alleged damage is principally emotional harm or, in other words, hurt feelings and lost aspirations and/or career opportunities flowing from the birth of his child [emphasis added]. His situation, as a man, is quite different from that of the woman. Clearly, there are profound physical and psychological effects on a mother undergoing a pregnancy that do not apply to the father of the child. [PP] was not exposed to any serious transmissible disease or other significant risk of serious bodily harm flowing from the intercourse. Moreover, it is noteworthy that [PP] was willing to assume some risk, albeit small, that pregnancy would result from the several instances of sexual intercourse, a risk present even where the woman is taking contraceptive pills [emphasis added].

Here, the sexual contact was consented to, and there had been no physical injuries suffered by PP as a result. Therefore, there was no violation of his right to physical or sexual autonomy that could possibly give rise to a battery claim. The Court of Appeal ultimately dismissed PP’s appeal and awarded DD $8,000 in costs.

Lessons Learned

Had the Court of Appeal ruled in favour of PP, it would have set an alarming precedent for parents of children born as a result of an unwanted pregnancy. As recognized by the Court of Appeal, this was not a case of two parents who did not want a child and who therefore sued a third or external party whose error or negligence resulted in a pregnancy, such as doctor who performed a faulty vasectomy. Here, the facts were clear, as summarized by the Court of Appeal’s own words:

1. The parties developed an amorous relationship that included repeated vaginal sexual intercourse;
2. [PP] agreed to have unprotected sex with [DD] and, although he accepted the risk of pregnancy that exists when a sexual partner is taking contraceptive pills, he was not prepared to accept the risk of pregnancy if [DD] was not taking any contraceptives;
3. [PP] has not suffered any physical injury or any emotional harm that is pathological in nature;
4. [PP] was not exposed to any known risk of bodily harm because of the sexual intercourse;
5. [DD] became pregnant and a healthy child was born of their relationship;
6. There was no alleged misrepresentation by [DD] other than with respect to the use of contraceptives and, implicitly, that she intended to avoid getting pregnant; and
7. [PP] is male and, as father of the child, has legal as well as moral responsibilities toward that child.

The Court noted that:

It is to be hoped that [PP] will, as the child’s father, contribute to the child’s upbringing in a positive way. It is also hoped that he will see this contribution as being pleasurable and positive. If, however, he views it only in a negative light, I see no basis on which to impose liability on the mother for any net negative impact [PP] may consider that he has suffered due to his having fathered the child and contributed to his or her upbringing [emphasis added].

If you would like more information about parental obligations, child support, or any other family law issue, please contact the experienced family lawyers at Gelman & Associates online or at (416) 736-0200 or 1-844-742-0200 for a confidential initial consultation. We help clients in Toronto, Aurora, Barrie, Mississauga, North York, and Scarborough.