The case concerns a man who had been in a relationship involving consensual sexual intercourse with a woman who claimed to be taking the birth control pill.  This was not true. After their relationship ended, the man was told by his partner that she was pregnant. Despite his objections, the woman gave birth to a healthy child. The parties did not dispute that this was his child.  The father agreed to support and have a relationship with the child, however, he sued the mother for fraudulent misrepresentation (also added fraud and deceit). The damages claimed were based on him being deprived of the benefit of choosing when and with whom to become a father, also stated as "a non-pathological emotional shock from becoming a parent". The claim was struck by the motions judge and this judgment was affirmed by the Ontario Court of Appeal.

In a wide ranging judgment Rouleau J.A. discussed various matters:

The fraudulent misrepresentation action failed due to the lack of recoverable damages. The non-pathological emotional harm or disruption of a career and finances are not recoverable damages for fraud.

Rouleau J discussed the law concerning the "unwanted birth of a child" - the involuntary parenthood cases, while conceding that the case before the Court was not the normal case. However, many cases were referenced.

Rouleau J.A. also commented on the inappropriateness of using tort law in the family law context and introducing "fault" into these disputes. There is a considerable discussion on this issue.

A potential claim in battery was foreclosed because the fraud did not go to the nature or quality of the act, and in this part of the judgment the Criminal law cases are discussed with reference made to a recent Supreme Court of Canada judgment of R v Hutchinson 2014 SCC 19.

I have mixed feelings about this judgment. There is no doubt that the man only engaged in unprotected sex because he was told it was safe to do so. This seemed to be a serious concern of his, at least from the pled facts. The birth of the child was of consequence to him; both in terms of emotional and financial attachment. Also it would of necessity continue a relationship with the woman in terms of child rearing decisions etc. On the other hand, should the mother be burdened with a large damage award? She agreed to accept all responsibility for raising the child, although this was her intention at finding out that she was pregnant and would not ( I think... but I am not a family lawyer) release him from his obligations to the child.

It is a tough one.

Lewis

--