SHE LIED ABOUT BEING ON THE PILL. NOW SHE’S PREGNANT. DO YOU HAVE TO PAY CHILD SUPPORT?
Law considers all possibility of conception
WHEN PARTIES ENGAGE IN SEXUAL RELATIONS, THEY ARE DEEMED TO DO SO ON THE UNDERSTANDING THAT HOWEVER UNLIKELY AND HOWEVER UNANTICIPATED, A PREGNANCY MAY RESULT. — JUSTICE DAVID STEINBERG, ONTARIO SENIOR FAMILY JUDGE, 2000
‘She said she was on the pill.”
That r efrain is often heard by family lawyers from male clients who have been served with an application for child support. Variations include, “She told me she couldn’t get pregnant” and “It wasn’t my idea — before I knew it, she was all over me.”
Each province and territory has legislation in place that requires the parents of a child to pay child support, no matter how conception occurred.
In 2000, one of Ontario’s senior family judges, Justice David Steinberg, said: “When parties engage in sexual relations, they are deemed to do so on the understanding that however unlikely and however unanticipated, a pregnancy may result.” Two years later, Justice Backhouse of the Ontario Superior Court added: “Relationships involve risk taking. People should be honest but it is well known that frequently they are not.”
Unwilling fathers have made many creative claims over the years to try to avoid their child support obligations when parenthood has been thrust upon them. Last year, the Ontario Court of Appeal decided P.P. v. D.D., a case in which a male doctor claimed damages for fraudulent misrepresentation, after being told his partner, D. D., was pregnant. He claimed he had sex with D. D. only after she assured him she was on the pill.
In P. P., t he i ssue was whether P. P.’ s claim f or fraudulent misrepresentation could proceed. D. D. brought a motion to have the claim “struck without leave to amend,” meaning that if the motion succeeded, P. P. could not proceed with his claim at all.
For the purposes of deciding whether a claim can be struck, the court is obliged to assume that the facts set out in the claim are true. P. P.’s statement of claim said that before he and D. D. first had sex, he asked her if she had any condoms. When she said that she did not, he asked if she was “on the pill.” She said she was. P. P. and D. D. then continued with their amorous activity, and “had intercourse that included intravaginal ejaculation.”
This pattern continued for several months before the relationship ended.
Shortly after the relation- ship ended, D. D. texted P. P. to tell him that she was pregnant. A predictable (and presumably volatile) discussion ensued, which ended with D. D. confirming she intended to have the baby.
For P.P. to successfully sue D.D. and receive damages for her fraudulent misrepresentation, the Court of Appeal confirmed that P. P. must prove: (1) the representation was made by D. D.; ( 2) D. D. knew her representation was false; (3) the false statement was material and P.P. was induced to act; and (4) P.P. suffered damages.
The Court of Appeal focused on whether P.P. had experienced losses that could be compensated for by damages.
In deciding whether P. P.’s claim should be struck, Justice Rouleau for the court summarized the facts. He observed the following: that P.P. agreed to have unprotected sex with D.D. and in so doing, he accepted the risk of pregnancy that exists when a sexual partner is on the pill, (but not the risk of pregnancy if she was not taking any contraceptives); that P.P. had not suffered any physical injury or any emotional harm that was pathological in nature (meaning that he had no recognized physical or psychiatric illness); that P.P. was not exposed to any known risk of bodily harm because of the sexual intercourse; and that there was no misrepresenta- tion by D.D. other than about the use of contraceptives.
P. P. claimed that the unwanted child caused him emotional upset, broken dreams, possible disruption to his lifestyle and career, and a potential reduction in future earnings.
In its decision, the court commented on the legislative changes over the past forty years in which we have moved from a fault- based divorce and child- support regime. The court went on to say “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 (P.P.) 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.”
While P. P.’s position was that he had accepted and was compliant with his obligations to pay child support, the court saw P. P.’s claim for $ 4 million in damages as an attempt to circumvent his obligation to provide support.
While P. P. had not made a claim in battery, both the motions judge and the Court of Appeal also considered whether P. P. had a potential claim for sexual battery.
To prove sexual battery, P.P. was obliged to prove that D.D. touched him in a sexual manner and the interference was harmful or offensive. If there was no consent to the sexual contact, P. P. could make a claim for sexual battery. If a consent is obtained by fraud, the consent can be invalid.
However, not all types of fraud invalidate consent to sexual activity. Unless the dishonesty results in a significant risk of serious bodily harm, consent to sexual activity will be invalid only if the dishonesty relates to the identity of the sexual partner (such as where a woman mistakenly consented to sex with her boyfriend, but in fact had sex with her boyfriend’s identical twin), or if the deception was related to the sexual nature of the act itself (such as when the choirmaster had sex with a student, saying it would improve her singing).
( Yes, both of these are ac- tual cases).
In considering a possible sexual battery claim, Justice Rouleau decided that the dishonesty in P. P.’s case was not with respect to the nature of the sexual act, but only its consequence. The sexual contact was clearly consensual, and P.P. was not physically harmed by it.
While the Court of Appeal concluded its decision by saying that it did not minimize the “legal and moral responsibilities” that P. P. now had, nor did it “condone the alleged conduct” of D.D., P. P.’s claim simply could not succeed.
In short, the law on unwanted fatherhood is clear: If you play, you pay.