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Epstein’s This Week in Family Law | Unplanned fatherhood

Father denied damages for non-pathological emotional harm caused by unplanned fatherhood in recent decision.



Epstein’s This Week in Family Law


By: Philip Epstein 

 

Father Sues Mother for Having Deceived Him into Fathering a Child - Father Claims Damages for Non-pathological Emotional Harm Caused by Unplanned Fatherhood - Claim for Fraudulent Misrepresentation or Sexual Battery

P. (P.) v. D. (D.), 2016 CarswellOnt 237 (Ont. S.C.J.) - Perell, J. “I was tricked” is the very common refrain of the male family law client who has just been served with a claim for child support from his sexual partner. Their stories are known to all of us who toil in the vineyards of family law. “She said she was on the pill.” “She said that because of medical issues, she could not get pregnant.” “She said that she did not want a child.” “She said that if she ever got pregnant she would have an abortion.” “She seduced me.” When questioned about why he did not protect himself, the punitive father almost always answers that “I relied on her statement that she could not get pregnant or that she would abort a child.” This masterful decision by Justice Perell of the Ontario Superior Court of Justice explores this kind of dispute and ultimately determines that a cause of action does not lie in favour of the father. Thus, even if one accepted that the father was “tricked” he cannot claim damages on account of this kind of deceit.

As Justice Nancy Backhouse said in Lee v. Riley (2002), 2002 CarswellOnt 5558 (Ont. S.C.J.):

Relationships involve risk taking. People should be honest but it is well known that frequently they are not. (This is legal speak for “bring your own condoms to the party”.)

The matter arose before Justice Perell by way of a motion to strike the father’s statement of claim without leave to amend. Accordingly, on this type of motion, allegations contained in the statement of claim are deemed to be true. Undoubtedly, while the father and mother may not agree on all of the details of their relationship, it is important for the understanding of this case to appreciate that Justice Perell has ruled on the viability of a cause of action on the highest and best case put forward by the father. Thus, for the purposes of deciding whether a cause of action lies for this kind of deceit, fathers will never likely have a better case than this. However, as this decision makes clear, having a good factual underpinning does not mean than one has a viable cause of action. I am not going to delve deeply into the facts, that Justice Perell notes are “salacious and ignobly pleaded”. It will simply suffice to say that the father, a medical doctor (and thus who should have known better) had a number of dates with the defendant which eventually lead to them having sexual intercourse. What gives rise to the claim for deceit is the following scenario. During consensual sexual activity in the mother’s bedroom, the father asked the mother if she had any condoms. She replied that she did not. The father asked her if she was on the pill and she expressly told the father that she was. The father says that the mother also made an implied representation that she was taking birth control pills as prescribed and directed with the intention to avoid getting pregnant. The father says he believed that he and the mother shared the common intention to engage in sexual intercourse but to prevent an unwanted pregnancy. The father says he would not have engaged in that activity and would have engaged in other sexual activities that did not include a risk that the mother would become pregnant.

The parties continued their sexual relationship on a number of occasions with the father suggesting that on almost every occasion the mother represented that it was unnecessary for the father to wear a condom because she was on the pill.

After about nine dates the parties decided that they would have a non-sexual friendship and stopped their sexual relationship. Shortly thereafter the father received a text message in which the mother stated she was ten weeks pregnant with the father’s baby. The parties shortly thereafter had a telephone conversation in which the father said “I thought you were on the pill”. The mother simply responded “Yah”.

The father reacted badly to the news and the mother reacted badly to the father’s acting badly. The father then suggested an abortion, and the mother suggested she would raise the child on her own.

There is somewhat more to the story but it does not add significantly to the legal analysis. The mother ultimately gave birth to a healthy child. There has apparently been a paternity test indicating that the plaintiff is the child’s father, and he wishes to support and have a relationship with the child, but the mother has not allowed him to see the child.

The father initially claimed a declaration that because of the mother’s fraud, deceit, and fraudulent misrepresentations, dishonesty and deception, the mother was precluded from seeking child support. However, the father wisely did not go down that road, but instead issued a claim based on deceit and fraudulent misrepresentation and claimed damages.

Paragraph 26 of the statement of claim really sums up the father’s position:

[T]he representations by DD that: (i) she was taking birth control as prescribed and directed; (ii) she did not want to get pregnant; and, (iii) she did not want to have a baby were deliberate, willful, and conscious distortions of the truth. DD made those false statements with the knowledge that they are untrue. DD intended to deceive PP. DD intended that PP would rely and act upon the false statements. PP did so and, solely based upon the false statements, proceeded with sexual intercourse and intravaginal ejaculation. Consequently, DD became pregnant and has claimed that PP is the father of the child. DD brought about her pregnancy by deception. As a result, PP has suffered damages.

The father began the claim under the Rules of Civil Procedure and not in the Family Division in Ontario (Toronto) and made the issue even more interesting by serving a jury notice.

The mother initially sought an order transferring the claim to the Family Law Court, but the father successfully resisted that on the basis that his civil action in which he has delivered a jury notice cannot be joined with family law proceedings. See section 108(2) of the Courts of Justice Act.

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