Dear Lewis;
Thanks for forwarding this very interesting decision. I had a quick look and noticed that the court did not pick up the decision of the High Court of Australia in Magill
v Magill [2006] HCA 51 http://www.austlii.edu.au/au/cases/cth/HCA/2006/51.html , which raised very similar issues: an action for deceit failed where the plaintiff had been led
to believe 2 children were his when in fact they were fathered by another person during the course of the marriage. His claims were a bit similar: see [2]
First, the appellant alleged that he had suffered personal injury, in the form of anxiety and depression, in consequence of the respondent's fraudulent misrepresentations. Secondly, he claimed financial loss, including loss of earning capacity by reason of his mental or psychological problems, and loss related to the time he had spent with, and money he had spent on, the children under the mistaken belief that he was their father.
The claim failed, for different reasons. Some judges inclined to the view that the tort of deceit cannot be used in relationship to intimate family relations. Others took the view that the elements of the tort of deceit, either reliance or relevant damage,
were not made out. An interesting comparison with the Ontario case.
Regards
Neil
NEIL FOSTER
Associate Professor
Associate Professor
Newcastle Law School
Faculty of Business and Law
Faculty of Business and Law
Further details: http://www.newcastle.edu.au/profile/neil-foster
The University of Newcastle (UoN)
University Drive
Callaghan NSW 2308
Australia
CRICOS Provider 00109J
 |
From: Lewis N Klar <lklar@ualberta.ca>
Date: Saturday, 4 March 2017 at 9:45 am
To: "obligations@uwo.ca" <obligations@uwo.ca>
Subject: [Spam?] Damages for birth of an "unwanted" child by father
Date: Saturday, 4 March 2017 at 9:45 am
To: "obligations@uwo.ca" <obligations@uwo.ca>
Subject: [Spam?] Damages for birth of an "unwanted" child by father
The Ontario Court of Appeal released a very interesting judgment on March 2: PP v. DD 2017 ONCA 180. The judgment raised a number of different matters which are of interest and important.
--
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
Lewis N. Klar, Q.C.,
Edmonton: 780 481 2150Phoenix: 602 466 1376