P.P. v. D.D.
[Indexed as: P. (P.) v. D. (D.)]
Ontario Reports
Court of Appeal for Ontario
Rouleau, Hourigan and Huscroft JJ.A.
March 2, 2017
137 O.R. (3d) 138 | 2017 ONCA 180
Case Summary
Torts — Fraudulent misrepresentation — Defendant becoming pregnant as result of brief sexual relationship with plaintiff — Plaintiff suing defendant for damages for fraudulent misrepresentation — Plaintiff pleading that he only had unprotected sexual intercourse with defendant because she falsely represented that she was on birth control pill — Motion judge not erring in finding that it was plain and obvious that claim was bound to fail as damages for involuntary parenthood are not recoverable by way of fraudulent misrepresentation action.
Torts — Sexual battery — Defendant becoming pregnant as result of brief sexual relationship with plaintiff — Defendant's misrepresentation that she was using birth control pill not vitiating plaintiff's consent for purpose of advancing claim in sexual battery — Deceit not going to nature and quality of act.
Facts
The defendant became pregnant as a result of a brief sexual relationship with the plaintiff. The plaintiff sued the defendant for negligent misrepresentation, seeking damages for non-pathological emotional harm caused by unplanned parenthood. He claimed that he would not have had unprotected sexual intercourse with the defendant had she not falsely represented that she was on the birth control pill. The defendant moved successfully to strike the statement of claim without leave to amend. The motion judge found that it was plain and obvious that fraudulent misrepresentation was not the appropriate legal vehicle for a claim for damages for the emotional harm arising from unplanned parenthood. The plaintiff was not granted leave to amend the statement of claim to plead sexual battery, as the motion judge found that it was plain and obvious that a claim for non-pathological emotional harm flowing from unplanned parenthood does not come within the ambit of the tort of sexual battery. The plaintiff appealed.
Held
The appeal should be dismissed.
The plaintiff, as an aggrieved father, could not recover damages from the defendant mother for involuntary parenthood. To allow the plaintiff to recover damages as against the defendant for the unwanted birth in the circumstances of this case would run against the clear trend in the law moving away from fault based claims in the family law context. 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 for the loss purportedly suffered by the plaintiff as a result of that responsibility. In the absence of recoverable damages, a claim of negligent or fraudulent misrepresentation could not succeed.
The defendant's misrepresentation did not vitiate the plaintiff's consent to sexual intercourse for the purpose of advancing a claim in sexual battery, as the deceit did not go to the nature and quality of the act.
Appeal from the Order of Perell J.
APPEAL from the order of Perell J. (2016), 2016 ONSC 258, 129 O.R. (3d) 175, [2016] O.J. No. 126 (S.C.J.) striking a statement of claim.
William A. Chalmers, for appellant.
Valois P. Ambrosino, for respondent.
The judgment of the court was delivered by
Judgment
A. Background
[1] In 2014, PP and DD met through a mutual friend and enjoyed a short romantic relationship that lasted for less than two months. They went out on a number of dates and engaged in ostensibly consensual sexual intercourse on several occasions. Based on his conversations with DD, PP understood that DD was taking the birth control pill and that she did not intend to conceive a child.
[2] Several weeks after their sexual relationship ended, PP was surprised to learn from DD that she was ten weeks pregnant. In early 2015, DD gave birth to a healthy child. According to DD, paternity testing confirmed that PP is the father.
[3] PP brought a civil action for fraud, deceit and fraudulent misrepresentation against DD, claiming as damages that the deception deprived him of the benefit of choosing when and with whom he would assume the responsibility of fatherhood. In his words, "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 pleaded that he consented to sexual intercourse with DD on the understanding that she was using effective contraception. In his view, this was an express or implied misrepresentation and his consent was vitiated, having been obtained through deception and dishonesty.
[4] This is an appeal from a decision granting DD's motion to strike PP's statement of claim without leave to amend: P. (P.) v. D. (D.) (2016), 129 O.R. (3d) 175, [2016] O.J. No. 126, 2016 ONSC 258 (S.C.J.). In a contemporaneously released decision, the motion judge made a confidentiality order on his own motion, ordering that the parties not be identified by name and that the court file be sealed: P. (P.) v. D. (D.), [2016] O.J. No. 125, 2016 ONSC 256, 262 A.C.W.S. (3d) 364 (S.C.J.).
Factual Background
[5] The motion judge described the factual and procedural background of this appeal on the basis of the allegations in PP's statement of claim (which were assumed to be true for the purposes of the motion), PP's answer to DD's family law application, and information provided during the hearing. I will summarize that background as necessary to decide the appeal.
[6] PP is a medical doctor and DD also works in the health care field. In the spring of 2014, they began dating at the suggestion of a mutual friend. Their first date was on May 14, 2014.
[7] Three days later, on May 17, 2014, they went on a second date. On that occasion, they had dinner and retired to DD's apartment where they engaged in consensual sexual activity. During the course of that activity, PP asked DD whether she had any condoms. When she replied that she did not, he asked if she was "on the pill". She told him that she was. After accepting this assurance from DD, PP consented to sexual intercourse that included intravaginal ejaculation.
[8] PP and DD went on four more dates in the following three weeks. On each occasion, they again engaged in consensual sexual intercourse and DD did not say or do anything to suggest that her prior representations of fact with respect to being "on the pill" were not, or were no longer, true.
[9] On June 10, 2014, they repeated the pattern of sexual activity that began on the second date, this time at PP's condominium. Prior to having sexual intercourse on that day, they discussed their practice of not using a condom. PP advised DD that he would happily wear one and that he did not want her to feel uncomfortable. DD stated that she preferred to have intercourse with him without a condom. Again, DD did not say or do anything to suggest that her prior representations of fact were not, or were no longer, true. They engaged in consensual sexual intercourse and intravaginal ejaculation.
[10] There were two more dates in June 2014, during both of which the same pattern of sexual activity was repeated.
[11] In July 2014, the pair decided to end their sexual relationship and agreed to remain friends. During the following weeks, they contacted one another several times by text message with respect to inconsequential matters.
[12] In the early evening of August 10, 2014, PP received a text message from DD that shocked him, in which DD informed him that she was ten weeks pregnant with his child. PP stated that he would call DD on his way to work. During that telephone conversation, DD told PP that she intended to deliver and keep the baby. PP stated that he thought she was "on the pill", to which DD simply responded, "yah". PP told DD he did not intend to have a child at that point in his life and, in shock, he suggested that DD have an abortion. She insisted that she would not do so, to which PP responded in anger: "I don't want to have a baby with some random girl. I waited my whole life to decide who I have a baby with."
[13] After ending the telephone conversation, they exchanged several text messages in which DD expressed confidence that she could raise the child on her own and stated that she did not want to force PP's involvement in the child's upbringing. She told PP that "this random girl is fine doing it on her own". PP insisted that they meet to discuss the matter in person.
[14] PP and DD arranged by text message to meet in a local park on August 20, 2014. They met for approximately 20 minutes. During this meeting, PP asked DD if she had been taking "the pill" every day, to which she responded, "yes". When PP asked what pill she was on, DD looked away and did not respond. She said nothing about the name of the pill. PP inquired about the dates of DD's menstruation, to which she replied that she was unsure. She then informed him that she checked a pregnancy test six times immediately after PP returned from a trip abroad on June 22 and that, since then, she had had three ultrasounds. The meeting ended and they went their separate ways.
[15] In early September, the pair communicated several times about DD's uncertainty with respect to whether PP was in fact the child's father. PP later had a paternity test, the results of which he still had not seen at the time of the motion. On September 18, DD contacted PP to advise him that he was the father and that she had decided to keep the child. PP expressed his disagreement and the pair did not communicate directly with one another after that time.
[16] On March 28, 2015, DD delivered a healthy child. On the assumption he is in fact the father, PP maintains that he wishes to support and have a relationship with the child. PP and DD began negotiations through counsel for an interim agreement on child support.
[17] On July 15, 2015, PP commenced his action for damages against DD. In his reasons, the motion judge noted that in this statement of claim PP sought to avoid child support obligations under the Family Law Act, R.S.O. 1990, c. F.3 on the basis of DD's alleged fraudulent misrepresentation. However, that statement of claim was never served and a notice of discontinuance was filed on July 21, 2015. The statement of claim in the present action was issued on the same date.
[18] PP's statement of claim asserts that, on the basis of DD's knowingly false representations with respect to her use of birth control and her implied intention not to conceive or deliver a child, he engaged in sexual intercourse that resulted in the birth of a child. He alleges that his consent was vitiated, having been induced by DD's misrepresentations that led him to believe she was taking the birth control pill as prescribed and directed. As the child's father, PP claims he has suffered damages. PP claims he has been deprived of the benefit of choice with respect to when, and with whom, he would conceive a child and raise a family.
[19] PP's claim states that the particulars of his damages will be provided in the course of the proceeding in accordance with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. He also seeks punitive damages.
[20] Two days after the statement of claim was issued, on July 23, 2015, the pair signed an interim agreement for child support and access rights.
[21] In September 2015, DD brought a motion to have PP's claim struck without leave to amend. In early October, DD commenced a family law application for support and custody. In late October, PP served a jury notice in his civil action. Finally, on December 10, 2015, the day before the motion now on appeal was heard, PP delivered his answer in the family law application.
B. The Decision Below
[22] The motion judge granted DD's Rule 21 motion to strike PP's claim without leave to amend. I will summarize the elements of his reasons for doing so that are relevant to this appeal.
[23] First, the motion judge denied DD's request for an order, as alternative relief, to transfer the claims in the civil action into the family law court proceedings. He held that PP's civil action, in which he had delivered a jury notice, could not be joined with family law proceedings that must be tried without a jury pursuant to s. 108(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[24] The motion judge then noted that, on a motion under rule 21.01(1)(b), a statement of claim may be struck where, assuming the facts pleaded are true, it is plain and obvious that the pleading discloses no reasonable cause of action. He acknowledged that the standard is very low for the demonstration of a reasonable cause of action on a Rule 21 motion. However, he also cited Frame v. Smith, [1987] 2 S.C.R. 99, [1987] S.C.J. No. 49, at para. 36, for the proposition that in litigation involving children a "more stringent standard" may be imposed in order to ensure the children's best interests are protected. The motion judge stated that he would apply that "more stringent standard" to the present case.
[25] The motion judge held that the claim of fraudulent misrepresentation could not be made out. He determined that "PP is only suing in fraudulent misrepresentation because he had a non-pathological emotional shock from becoming a parent" (para. 74). In the motion judge's view, fraudulent misrepresentation is an economic or pecuniary loss tort, for which damages are meant to restore a party to the financial circumstances he or she was in prior to relying on the misrepresentation. As a result, it was plain and obvious that a fraudulent misrepresentation claim for damages for what the motion judge labelled as "non-pathological emotional harm resulting from an unplanned parenthood" could not succeed.
[26] The motion judge took issue with PP's allegation that his consent to sexual activity was vitiated by fraud. The judge noted that lack of consent is not a constituent element of a claim for fraudulent misrepresentation. In his view, vitiated consent is the effect and not the cause of a fraudulent misrepresentation.
[27] In addition, the motion judge held that PP should not be allowed to extend the scope of the tort of fraudulent misrepresentation to circumvent the legal boundaries of the torts of intentional infliction of mental suffering or negligence. He identified those two torts as the "conventional legal tools" for civil redress against misconduct causing emotional harm.
[28] With respect to negligence, the motion judge held that the non-pathological emotional harm claimed by PP did not rise to the level of compensable damage for personal injury: Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114, [2008] S.C.J. No. 27, 2008 SCC 27, at para. 9.
[29] Similarly, in the motion judge's view, a claim for intentional infliction of mental suffering could not succeed, in part because the constituent elements of that tort include damage in the form of a visible and provable illness: see, e.g., Frame v. Smith, at para. 46; Prinzo v. Baycrest Centre for Geriatric Care (2002), 60 O.R. (3d) 474, [2002] O.J. No. 2712 (C.A.), at para. 43.
[30] Citing further from the reasons of Wilson J. in Frame v. Smith, at paras. 46-47, the motion judge held that it was plain and obvious that the civil claim before him should not be permitted to extend the tort of fraudulent misrepresentation into the context of a family law conflict of this nature. This is because it would not appear to be in the best interests of children to do so.
[31] Finally, the motion judge recognized the possibility that, although it was not pleaded, PP's pleadings could support a cause of action for civil sexual assault ("sexual battery"). In his view, this is the "conventional legal tool" for civil redress against sexual misconduct. The motion judge noted that such a claim is provable without any damages having been suffered beyond the invasion of one's bodily integrity.
[32] After reviewing the jurisprudence on fraud vitiating consent in the context of sexual battery, the motion judge determined that PP's pleading might indeed disclose a claim for sexual battery. However, he declined to grant PP leave to deliver a fresh as amended statement of claim expressly pleading such a claim. The decisive factor was that PP's "novel" sexual battery claim was, in the motion judge's view, focused on the non-pathological emotional harm of an unplanned parenthood. In other words, the motion judge found that PP's sense of violation arose not from the sexual touching to which he ostensibly consented, but from the spoiling of his later plans by the birth of an unplanned child.
[33] For the same reasons that a fraudulent misrepresentation claim could not succeed -- namely, that it was based on "the non-pathological emotional harm of unplanned parenthood" -- it was plain and obvious to the motion judge that the claim did not come within the ambit of the tort of sexual battery.
[34] In a subsequently released decision, the motion judge declined to make any order as to costs: P. (P.) v. D. (D.), [2016] O.J. No. 562, 2016 ONSC 814, 263 A.C.W.S. (3d) 322 (S.C.J.). As he explains in his reasons, this was because the issues were novel and important, and neither party was wrong in seeking access to justice. Further, the motion judge determined that "awarding costs would likely increase the acrimony between the parties and thus complicate the proceedings in the Family Court and make this sad story worse for the child whose birth has become a source of emotional grief" (para. 9).
C. Issues on Appeal
[35] The appellant raises several grounds of appeal. In my view, accepting as true the fact situation as pleaded by the appellant, the appeal can be resolved by answering two questions. First, can the appellant, as an aggrieved father, recover damages from the respondent, the mother, for involuntary parenthood? In the absence of recoverable damages, a claim of negligent or fraudulent misrepresentation cannot succeed. Second, can the alleged fraudulent misrepresentation as to the use of contraceptives vitiate the appellant's consent to sexual touching for the purpose of advancing a claim of battery in these circumstances?
[36] I would answer both of these questions in the negative and dismiss the appeal.
D. Discussion
(1) Can the Appellant Recover Damages Arising from the Child's Birth?
[37] Central to the motion judge's dismissal of the appellant's claim for fraudulent misrepresentation is his conclusion that there were no recoverable damages. The appellant argues that the motion judge erred in several respects on the issue of damages.
[38] First, the appellant argues that a simple plea that he has suffered damages is sufficient. Second, notwithstanding his submission that the motion judge erred in characterizing the claim as one for damages for "non-pathological emotional harm from unplanned parenthood", the motion judge described the claim for damages as "novel" and, as such, the appellant argues, it ought to be allowed to proceed to trial. Third, he argues that he ought to have been permitted to amend his pleading to allege other potential loses he has suffered or will suffer such as, he submits, the negative impact on his career and income earning capacity resulting from his having to spend time with his unwanted child.
[39] I agree with the motion judge's conclusion that the appellant has not made out a viable claim for fraudulent misrepresentation. Such a claim cannot succeed in the absence of recoverable damages. It is not sufficient to simply allege that damages were suffered; there must be a basis for the claim that a loss has been suffered for which the law allows recovery of damages.
[40] The appellant places particular reliance on the obiter comment of Cory J. in R. v. Cuerrier, [1998] 2 S.C.R. 371, [1998] S.C.J. No. 64, at para. 135, that "[f]raud which leads to consent [to a sexual act] but which does not have [a significant risk of serious bodily harm] might ground a civil action". In the motion judge's view, while this may be true, "that civil action would not be fraudulent misrepresentation for damages for non-pathological emotional harm". I agree with that conclusion and, as I will explain, none of the damages allegedly suffered by the appellant -- be they the damages set out in the claim or those argued in the course of submissions by counsel -- are properly recoverable in a tort claim.
[41] To succeed on a civil claim for fraudulent misrepresentation, the appellant must establish the following: (1) the representation was made by the respondent; (2) the respondent knew that the representation was false or was recklessly indifferent to its truth or falsity; (3) the false statement was material and by it the appellant was induced to act; and (4) the appellant suffered damages: Bruno Appliance and Furniture, Inc. v. Hryniak, [2014] 1 S.C.R. 126, [2014] S.C.J. No. 8, 2014 SCC 8, at para. 21; see, also, Parna v. G. & S. Properties Ltd., [1971] S.C.R. 306, [1970] S.C.J. No. 81, 15 D.L.R. (3d) 336, at p. 344 D.L.R. The Supreme Court of Canada has consistently recognized that "fraud without damage gives . . . no cause of action": Hryniak, at para. 20.
[42] The appellant maintains that the pleading has made out all of the required elements for fraudulent misrepresentation including damages. In his submission, the damages claimed -- be they for non-pathological emotional harm or for disruption of his career and finances -- while perhaps novel, should be left to be determined after a trial.
[43] I have concluded that the appellant has not made out a viable claim for recoverable damages. As I will explain, I regard it as plain and obvious that those damages are not and, as a matter of legal policy, ought not to be recoverable by way of a fraudulent misrepresentation action.
[44] Before proceeding with my analysis of the damages issue, I will briefly summarize the alleged facts on which my analysis and conclusion are based.
[45] The relevant facts drawn from the pleading, which for the purpose of this motion are assumed to be true, can be summarized as follows:
The parties developed an amorous relationship that included repeated vaginal sexual intercourse;
The appellant agreed to have unprotected sex with the respondent 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 the respondent was not taking any contraceptives;
The appellant has not suffered any physical injury or any emotional harm that is pathological in nature;
The appellant was not exposed to any known risk of bodily harm because of the sexual intercourse;
The respondent became pregnant and a healthy child was born of their relationship;
There was no alleged misrepresentation by the respondent other than with respect to the use of contraceptives and, implicitly, that she intended to avoid getting pregnant; and
The appellant is male and, as father of the child, has legal as well as moral responsibilities toward that child.
[46] 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. 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.
(a) The Damages Issue in Involuntary Parenthood Cases
[47] There have been numerous cases dealing with involuntary parenthood both in Canada and abroad. These normally involve lawsuits brought by parents against health care providers whose negligence resulted in the unwanted birth of a child. Recovery in such claims has generally been allowed for the damages suffered as a result of the pregnancy and birth of the child, but not for the cost associated with the mere fact of having become a parent or raising a healthy child. Although some jurisdictions -- such as Quebec (see Suite c. Cooke, [1995] J.Q. no 696, [1995] R.J.Q. 2765 (C.A.)), New Brunswick (see Stockford v. Johnston Estate, [2008] N.B.J. No. 122, 2008 NBQB 118, 335 N.B.R. (2d) 74), and Australia (see Cattanach v. Melchior, [2003] H.C.A. 38, 199 A.L.R. 131) -- have allowed some form of recovery for the cost of raising a healthy child, Ontario courts have, to date, generally not followed that approach in involuntary parenthood cases: see Paxton v. Ramji, [2008] O.J. No. 3694, 2008 ONCA 697, affg (2006), 92 O.R. (3d) 401, [2006] O.J. No. 1179 (S.C.J.), at n. 7. In the oft-cited case of Kealey v. Berezowski (1996), 30 O.R. (3d) 37, [1996] O.J. No. 2460 (Gen. Div.), Lax J. discussed the question at length and held that, while the general principles for the award of damages for child-rearing costs should evolve on a case-by case basis [at para. 82],
The responsibilities and the rewards [of rearing a child] are inextricably bound together and do not neatly balance one against the other, at least not in the case of children. Who can say whether the time, toil and trouble, or the love, guidance and money which parents devote to a child's care and upbringing, will bring rewards, tangible or intangible, today, tomorrow or ever. No court can possibly determine this in any sensible way. Nor should it attempt to do so . . . The responsibilities and the rewards cancel each other out.
[48] The issue of damages in involuntary parenthood cases was extensively considered by the House of Lords in McFarlane v. Tayside Health Board (Scotland), [1999] 4 All E.R. 961, [2000] 2 A.C. 59 (H.L.) and again in Rees v. Darlington Memorial Hospital NHS Trust, [2003] UKHL 52, [2004] 1 A.C. 309 (H.L.). Both of these cases dealt with the most common form of such claims, that is, those brought by one or both parents against third-party health care providers.
[49] In McFarlane, the plaintiff's husband had a vasectomy and was advised that his sperm count was nil and that contraceptive precautions were no longer necessary. The couple acted on that advice and the plaintiff subsequently became pregnant and delivered a healthy child. The parents alleged that they had suffered loss as a result of the health board's negligence. The plaintiff sought damages from the health board for pain and suffering arising out of pregnancy and labour as well as for the financial consequences of the parents' duty to raise the child, whom they loved and cared for as an integral part of their family.
[50] The House of Lords was unanimous in rejecting the claim for the financial cost of raising a healthy child. Although the reasoning adopted by each of the Lords varied, the ratio was fairly summarized in a lecture made to the Personal Injury Bar Association's Annual Conference in 2003 by Sir Roger Toulson, the chairman of the Law Commission. He described the House of Lords' reasoning as follows:
Although at a detailed level there are therefore significant differences between the judgments, at a broader level two features dominate them. These are, first, the incalculability in monetary terms of the benefits to the parents of the birth of a healthy child; and, secondly, a sense that for the parents to recover the costs of bringing up a healthy child ran counter to the values which they held and which they believed that society at large could be expected to hold.
[51] In the subsequent involuntary parenthood case of Rees, the plaintiff was a mother who did not want a child as she was severely visually disabled and would find it difficult to raise the child. As a result of the negligence of the health care provider, she gave birth to a healthy child. The House of Lords confirmed its decision in McFarlane and denied any recovery for the costs of raising the healthy child. In Rees, however, a majority of the House for different reasons supported a modest "conventional" award of £15,000 to the plaintiff mother who was raising the child (the father having taken no interest in the child), as a nominal, non-compensatory recognition of the mother's loss of autonomy.
[52] In Rees, the Lords unanimously declined to reconsider the holding in McFarlane, upholding that decision's refusal to grant recovery of the costs of the child's upbringing. In his speech, Lord Millett reiterated his view, as expressed in McFarlane:
In my opinion the law must take the birth of a normal, healthy baby to be a blessing, not a detriment. In truth it is a mixed blessing. It brings joy and sorrow, blessing and responsibility. The advantages and the disadvantages are inseparable. Individuals may choose to regard the balance as unfavourable and take steps to forgo the pleasures as well as the responsibilities of parenthood. They are entitled to decide for themselves where their own interests lie. But society itself must regard the balance as beneficial. It would be repugnant to its own sense of values to do otherwise. It is morally offensive to regard a normal, healthy baby as more trouble and expense than it is worth.
[53] While the decision is controversial, it is nonetheless relevant. In my view, the Lords' reasoning to the effect that the kind of damage sought by the appellant is fundamentally incalculable and not recoverable in tort has particular force in the circumstances of this case, namely, where a father claims damages as against a mother for the emotional and/or economic costs associated with the rearing of a healthy child.
[54] There is no determinative precedent in Canada respecting a claim by one or other parent against a third party for involuntary parenthood involving a healthy child and that issue is not before us in this case. However, the incalculability of any purported loss is particularly acute where the claim is made not by the parents as against a third party, but by one parent as against the other parent with whom he shares equally the legal and moral responsibility of maintaining the child. As I will discuss further below, to award damages in this case would be contrary to the spirit and purpose of Ontario's statutory family law regime.
(b) The Irrelevance of Fault in Ontario's Custody and Child Support Regime
[55] As I have noted above, this is not a claim being advanced by unwilling parents as against a third party. Rather, it is a claim being advanced by the unwilling father against the mother, who does not claim to be an involuntary parent and who has willingly taken on the responsibility of raising the child. In effect, the father is claiming that, to the extent that he views the birth as a disadvantage to himself -- emotionally, professionally and/or financially -- the mother, who has agreed to raise the child, must compensate him. Presumably, the more time and resources the appellant devotes to the child, the more his income and career will suffer and the more the respondent will have to pay.
[56] It is to be hoped that the appellant 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 the appellant may consider that he has suffered due to his having fathered the child and contributed to his or her upbringing.
[57] To allow the appellant to recover damages as against the respondent for the unwanted birth in the circumstances of this case would, in my view, run against the clear trend in the law moving away from fault based claims in the family law context.
[58] Since the 1970s, Canadian jurisdictions have moved away from a fault based divorce and child support regime. The 1976 Law Reform Commission of Canada's Report on Family Law (Ottawa: Information Canada, 1976) put it as follows, at p. 18:
[There should be] a process that offers no legal confirmation of a spouse's contention that he was right and she was wrong, that she is innocent and he is guilty, that one is good and the other is bad. No legal results should be allowed to follow from such claims or accusations -- not dissolution, not financial advantage, not a privileged position vis-à-vis the children.
[59] In Frame v. Smith, at para. 9, La Forest J. similarly emphasized the "undesirability of provoking suits within the family circle". As he explained, such claims brought by one parent against another should not often be allowed since they are in most cases detrimental to the parties involved -- especially to the welfare of the child -- and will invite a flood of cases. See, also, Louie v. Lastman (2001), 54 O.R. (3d) 301, [2001] O.J. No. 1889 (S.C.J.), at para. 31, affd (2002), 61 O.R. (3d) 459, [2002] O.J. No. 3522 (C.A.); and Saul v. Himel, [1994] O.J. No. 2630, 9 R.F.L. (4th) 419 (Gen. Div.), at para. 20, affd , [1996] O.J. No. 1303, 22 R.F.L. (4th) 226 (C.A.).
[60] Further, La Forest J. held in Frame that clear legislative action with respect to child custody and access rights was determinative in that case and precluded any possible judicial initiative in that area through the development of tort law. It was obvious to him that "the legislature intended to devise a comprehensive scheme" that precluded the availability of civil actions in such family disputes as the one before him: see Frame, at paras. 11-12.
[61] When a couple's dispute involves costs related to their child, the imposition of civil liability raises similar concerns. It is well established that child support is the right of the child: see, e.g., S. (D.B.) v. G. (S.R.), [2006] 2 S.C.R. 231, [2006] S.C.J. No. 37, 2006 SCC 37, at para. 38. There is a corresponding obligation "placed equally upon both parents" to financially support the child: Paras v. Paras, [1971] 1 O.R. 130, [1970] O.J. No. 1630 (C.A.). The Supreme Court of Canada has confirmed that Kerr v. Baranow, [2011] 1 S.C.R. 269, [2011] S.C.J. No. 10, 2011 SCC 10, at para. 208:
. . . the obligation of both parents to support the child arises at birth. In that sense, the entitlement to child support is "automatic" and both parents must put their child's interests ahead of their own in negotiating and litigating child support.
[62] The child support obligation of a parent in Ontario is legislated in s. 31(1) of the Family Law Act, which clearly states that every parent has an obligation to provide support for his or her child to the extent that the parent is capable of doing so. The legislative scheme for child support is broad, and does not take blame into account in relation to the manner of conception. The statutory remedies available to ensure support for the child flow from the simple fact of being a parent as defined by statute.
[63] 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 the appellant 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.
[64] The appellant asserts that he accepts and has complied with his statutory duty to pay child support. Nevertheless, the appellant seeks to recover in excess of $4 million in damages from the child's mother in compensation for losses flowing from the child's birth and his responsibilities toward that child. In the circumstances of this case, to allow the appellant's claim would, in effect, be to allow the appellant to circumvent the equal obligations to the child imposed on parents by law -- obligations that are imposed without regard to fault or intention.
[65] Little would distinguish this proposed claim from claims other parents may decide to bring against their former spouses or sexual partners seeking compensation for the burdens imposed on them by the birth of an unwanted child, where it is claimed that the child's conception was the result of a misrepresentation, duress, or even the negligence of the former spouse or sexual partner with respect to matters such as fertility or contraceptive use or misuse. Such actions would engender disharmony between mothers and fathers and would be contrary to the spirit of this province's family law legislation.
[66] With the above in mind, I would observe that appellate courts in the United States have decided a number of cases highly analogous in their facts to the present one. In Barbara A. v. John G., 145 Cal. App. 3d 369, 193 Cal. Rptr. 422 (1983), the California Court of Appeal, 1st District, articulated its understanding of the ratio in the earlier case of Stephen K. v. Roni L., 105 Cal. App. 3d 640, 164 Cal. Rptr. 618 (1980), a case in which a father had brought a cross-complaint in a paternity suit claiming damages against the mother, alleging that she had falsely represented that she was taking birth control pills and thereby induced him to engage in sexual intercourse that led to the birth of a child unwanted by him. In discussing Stephen K., the court emphasized its concern that to allow one parent to sue the other over the wrongful birth of their child, and thereby to use the child as the damage element in a tortious claim of one parent against the other, would effectively erase much or all of the former parent's financial support obligation. In that court's view, this type of action would seldom, if ever, result in a benefit to the child or be consistent with that state's family law legislation, which was designed to reduce acrimony between disputing parents.
[67] In Henson v. Sorrell, 1999 WL 5630 (Tenn. C.A.), the Court of Appeals of Tennessee referred to a number of other cases from a variety of American jurisdictions in which the father of a child has attempted to recover damages from the mother because of false representations concerning birth control use. The court noted that such claims have been "universally rejected". Again, in Wallis v. Smith (2001), 130 N.M. 214 (C.A.), the Court of Appeals for New Mexico dismissed precisely such a claim on the express basis that it would effectively allow the plaintiff to circumvent the legislative policy reflected in that state's statutory child support obligations. Although there are differences between the family law regimes in these United States jurisdictions and their equivalent in Ontario, the underlying principle is the same.
[68] For these reasons, as a matter of legal policy the alleged damages should not be recoverable in tort. Therefore, this is not the kind of novel claim that ought to be allowed to proceed to a protracted and expensive trial: see Arora v. Whirlpool Canada LP (2013), 118 O.R. (3d) 113, [2013] O.J. No. 5384, 2013 ONCA 657, at para. 94.
(2) The Potential Claim in Battery
[69] I turn now to the appellant's submission that, for the purpose of advancing a claim in battery, the misrepresentation of the respondent vitiated the appellant's consent to sexual intercourse.
[70] In Non-Marine Underwriters, Lloyd's London v. Scalera, [2000] 1 S.C.R. 551, [2000] S.C.J. No. 26, 2000 SCC 24, McLachlin J. (as she then was), writing for the majority, set out the purpose and features of the tort of battery, at para. 15:
The tort of battery is aimed at protecting the personal autonomy of the individual. Its purpose is to recognize the right of each person to control his or her body and who touches it, and to permit damages where this right is violated. The compensation stems from violation of the right to autonomy, not fault. When a person interferes with the body of another, a prima facie case of violation of the plaintiff's autonomy is made out. The law may then fairly call upon the person thus implicated to explain, if he can. If he can show that he acted with consent, the prima facie violation is negated and the plaintiff's claim will fail.
[71] The constituent elements of the tort of "sexual battery" are the same as those of the tort of battery. That is, the plaintiff must prove on a balance of probabilities that the defendant intentionally touched the plaintiff in a sexual manner. To prove a battery, the plaintiff must also demonstrate that the interference with his or her body was "harmful" or "offensive", but this element is implied (assuming a lack of consent) in the context of a sexual battery: Scalera, at para. 22.
[72] An apparent consent to sexual touching will be invalid if it has been obtained by duress, force or threat of force, given under the influence of drugs, secured through deceit or fraud as to the nature of the defendant's conduct, or obtained from someone who was legally incapable of consenting or where an unequal power relationship is being exploited: Norberg v. Wynrib, [1992] 2 S.C.R. 226, [1992] S.C.J. No. 60, at pp. 246-47 S.C.R. For the purpose of this appeal, I will focus only on fraud.
[73] In Linden and Feldthusen, Canadian Tort Law (10th ed.) (Toronto: LexisNexis, October 2015), the authors explain that not all forms of fraud will undermine consent to sexual touching. As they state, at p. 82, the key question is whether the deceit goes to the "nature and quality of the act". Consent to sexual touching will normally remain operative if the deceit relates not to the "nature and quality of the act", but instead to some collateral matter.
[74] Reported cases involving fraud pertaining to "the nature or quality of the act" are frequently cases of criminal sexual assault. Criminal sexual assault and tortious sexual battery typically involve the same wrongful act, namely, non-consensual sexual touching, and in such cases the difference lies in the mens rea and standard of proof that must be established: see Scalera, at para. 111. For the purpose of determining whether consent to sexual touching is operative in the face of fraud or deceit, such criminal cases are therefore instructive. Cases of fraud as to "the nature or quality of the act" have included circumstances where, for example, a choir-master had sexual intercourse with a young student under the pretense that it would improve her singing (R. v. Williams, [1923] 1 K.B. 340, [1922] All E.R. Rep. 433 (U.K. Ct. Crim. App.)) and where a woman consented to sexual intercourse under the belief that it would cure certain physical disorders (R. v. Harms, [1943] S.J. No. 7, [1944] 2 D.L.R. 61 (C.A.)).
[75] Likewise, fraud pertaining to the identity of the sexual partner will undermine consent. This court has upheld a criminal conviction for sexual assault where the complainant mistakenly believed her sexual partner was her boyfriend when it was in fact his identical twin brother and where the twin was reckless or wilfully blind as to whether his identity was clear to the complainant (R. v. C. (G.), [2010] O.J. No. 2587, 2010 ONCA 451, 256 C.C.C. (3d) 234, leave to appeal to S.C.C. refused [2010] 3 S.C.R. v, [2010] S.C.C.A. No. 300).
[76] The appellant relies on R. v. Hutchinson, [2014] 1 S.C.R. 346, [2014] S.C.J. No. 19, 2014 SCC 19, a case wherein the court -- in interpreting the Criminal Code provisions relating to sexual assault -- took the opportunity to both summarize and clarify the law as to when fraud vitiates a complainant's consent to sexual touching. In Hutchinson, the majority made clear that the analysis of whether consent to sexual touching is operative involves two questions. First, the court must determine whether the complainant validly consented to the sexual activity in question. Second, if so, the court must consider whether there are any circumstances that may vitiate the complainant's apparent consent: Hutchinson, at para. 4.
[77] With respect to the first question, the Supreme Court confirmed the earlier case law and the above-noted view of Linden and Feldthusen, insofar as fraud going to the "nature and quality of the act" will undermine consent. Where there is a deception or mistaken belief with respect to either the identity of the sexual partner or the sexual nature of the act itself, no consent to sexual touching will have been obtained: see Hutchinson, at para. 57.
[78] In the present case, there is no issue as to whether there was deception concerning the identity of the sexual partner or the sexual nature of the act itself. The appellant concedes that he consented to sexual intercourse with the respondent. His precise allegation is that his otherwise valid consent was vitiated in the circumstances by fraud.
[79] This takes me to the second question in Hutchinson, namely, what types of fraud will vitiate consent to sexual activity. Here the court confirmed the approach it took in the cases of R. v. Cuerrier, supra, and R. v. Mabior, [2012] 2 S.C.R. 584, [2012] S.C.J. No. 47, 2012 SCC 47. That is, for consent to be vitiated by fraud there must be (1) dishonesty, which can include the non-disclosure of important facts; and (2) a deprivation or risk of deprivation in the form of serious bodily harm that results from the dishonesty: Hutchinson, at para. 67.
[80] In Hutchinson, the accused punctured holes in a condom that he then used to have intercourse with the complainant. As a result, unbeknownst to the complainant the sex was unprotected and the intercourse gave rise to a significant risk of serious bodily harm, namely, becoming pregnant with all of its attendant risks.
[81] The majority in Hutchinson considered that the presence or absence of a condom during sexual intercourse does not affect the "specific physical sex act" to which the complainant consented, namely, sexual intercourse, but is rather a "collateral condition" to that sexual activity. In the majority's view, so long as there is consent to "sexual intercourse", this general consent is not vitiated by dishonesty about condom use unless it exposes the individual to a "deprivation or risk of deprivation in the form of serious bodily harm which results from the dishonesty" (para. 67). On the facts of Hutchinson, the deprivation consisted of denying the woman the benefit of choosing not to become pregnant [at para. 71] "by making her pregnant, or exposing her to an increased risk of becoming pregnant" and thereby exposing her to a significant risk of serious bodily harm. This was based on the majority's understanding that "harm" includes at least the sorts of profound changes in a woman's body resulting from pregnancy (paras. 69-72).
[82] In Hutchinson, therefore, the Supreme Court clarified that deception with respect to contraceptive practice does not go to the "nature and quality of the act" -- or, in the words of the Criminal Code, to the "sexual activity in question" -- but that it may, nevertheless, vitiate consent to sexual touching where the fraud gives rise to a significant risk of serious bodily harm, which includes the risk of pregnancy. The majority also made it clear, however, that [at para. 72],
To establish fraud, the dishonest act must result in a deprivation that is equally serious as the deprivation recognized in Cuerrier and in this case [namely, a significant risk of serious bodily harm]. For example, financial deprivations or mere sadness or stress from being lied to will not be sufficient.
[83] In summary, therefore, absent any concerns about bodily harm, the test for invalid or vitiated consent has not changed from that set out by the authors in Canadian Tort Law. With the one exception of deceit giving rise to a significant risk of serious bodily harm, in which case consent may be vitiated, the question continues to be whether the alleged deception relates to the specific sexual act undertaken and/or to the identity of the sexual partner.
[84] As a result, I do not view Hutchinson as being of any assistance to the appellant. In the present case, the intercourse between the two known partners occurred consensually on many occasions. The appellant's consent to sexual activity was meaningful, voluntary and genuine. As the appellant concedes, he consented to unprotected sex and was fully informed as to the respondent's identity and as to the nature of the sexual act in which the parties voluntarily participated. The touching involved was wanted and would have occurred in the same way except that, but for the alleged misrepresentation, the appellant would have used a condom. Not wearing a condom did not increase the appellant's risk of serious physical injury.
[85] As the motion judge found, the appellant'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. 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. The appellant 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 the appellant 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.
[86] The alleged deception in this case was not with respect to the nature of the act, but only as to the likely consequences flowing therefrom. The sexual contact in this case was consented to and there were no physically injurious consequences. There was therefore no violation of the appellant's right to physical or sexual autonomy that would give rise to a claim in battery. This is not to minimize the significance of fathering a child and the legal and moral responsibilities that ensue therefrom, nor to condone the alleged conduct of the respondent. The issue is only whether the alleged misrepresentation is actionable and whether, if proven, it would constitute the tort of battery. In my view, it would not.
(3) Cross-Appeal
[87] The respondent has cross-appealed on the issue of costs. As set out earlier, the motion judge exercised his discretion not to award costs on the basis that the issues were novel and important and, in addition, that he considered that an award of costs would further complicate the proceedings in the family court. Motion judges have broad discretion in the award of costs and their decisions are entitled to deference on appeal. I see no basis on which to interfere with the motion judge's exercise of discretion in this case.
E. Conclusion
[88] In conclusion, therefore, I would dismiss both the appeal and the cross-appeal.
[89] The respondent seeks costs of the appeal in the amount of $18,385.74. In my view, the amount claimed is somewhat high and substantially exceeds the costs incurred by the appellant. As a result, I would award the respondent's costs fixed in the amount of $8,000, inclusive of disbursements and applicable taxes.
Appeal dismissed.
Notes
As this court noted in Singh v. Trump, [2016] O.J. No. 5285, 2016 ONCA 747, at para. 141, it is not entirely clear from the recent case law that an intention that the false representation be acted upon is a necessary element of a fraudulent misrepresentation claim, but that is immaterial to the present appeal.
The result in Cattanach was subsequently modified by legislation in three Australian states, essentially restricting recovery for involuntary parenthood to the extra cost of raising a child born with a disability: see B. Feldthusen, "Supressing Damages in Involuntary Parenthood Actions" (2014), 29 Can. J. Family Law 11, n.12.
See, for example, J.K. Mason, The Troubled Pregnancy: Legal Wrongs and Rights in Reproduction (Cambridge: CUP, 2007), at p. 163; C.J. Thompson, "You Should Never Look a Gift Horse in the Mouth: One-Size-Fits-All Compensation in Wrongful Conception" (2012), 2(1) Westminster L. Rev. 73-96; N.M. Priaulx, "Damages for the 'Unwanted' Child: Time for a Rethink?" (2005) 73 Medico-Legal Journal 152-63; B. Feldthusen, "Supressing Damages", supra.
As reflected in recent amendments to the Children's Law Reform Act, R.S.O. 1990, c. C.12, the manner of conception may well be relevant, in itself, to the presumption of parentage for the purposes of determining child support obligations under the Family Law Act, for example, in the case of insemination by a sperm donor. PP's parentage is not disputed here and those issues are distinct from the case at bar.
See, also, A.M. Payne, "Sexual Partner's Tort Liability to other Partner for Fraudulent Misrepresentation Regarding Sterility or Use of Birth Control Resulting in Pregnancy" (1992), 2 A.L.R. 5th 301.
Although it is not relevant to this case, I note that the offence of assault (including sexual assault), unlike the tort of battery, need not necessarily include physical touching: Criminal Code, R.S.C. 1985, c. C-46, s. 265.
