Court rejects damages for pregnancy

Mother not liable, whether or not she lied about birth control pills

News flash: Unprotected sex between a man and a woman can lead to pregnancy. An overwhelmingly obvious fact, you say? And yet, it was once again at the heart of a court case in which a Toronto doctor sued a former sexual partner for $4 million, alleging fraud, deceit and fraudulent misrepresentation.

Known only as PP, he alleges the woman known as DD lied about taking birth control when they hooked up a few times without a condom in 2014 after meeting through a mutual friend. After DD said she was pregnant, PP sued her. He lost in the lower courts when a judge threw out his statement of claim without giving him permission to amend it.

So PP appealed to the Ontario Court of Appeal — and sure enough, PP lost yet again.

“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,’ ” Justice Paul Rouleau wrote on behalf of a unanimous three-judge panel, that included Justices William Hourigan and Grant Huscroft, in a decision released Thursday.

“He pleaded that he consented to sexual intercourse with DD on the understanding that she was using effective contraception.”

So, as Rouleau wrote, can an “aggrieved father” recover damages from his former sexual partner for “involuntary parenthood?”

“Someday the child that is at the centre of this case is going to ask about the circumstances of (his or her) coming into the world.” PAUL PERELL SUPERIOR COURT JUSTICE

And can an alleged “fraudulent misrepresentation” on the part of the mother — whether she was taking birth control as prescribed — render the father’s consent to sex invalid and therefore open up the mother to being sued for sexual battery?

The judges answered both questions with a resounding “no.”

“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,” Rouleau wrote.

“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.”

PP, who is already paying child support and wants to have a relationship with the child, has said he was not looking to avoid his obligations, but wanted the mother to compensate him nonetheless for the emotional, professional and/or financial impact the birth of the child has had on him.

But allowing PP to collect $4 million from DD to compensate for those losses “would, in effect, be to allow (PP) to circumvent the equal obligations to the child imposed on the parents by law — obligations that are imposed without regard to fault or intention,” Rouleau wrote.

Lawyers for PP and DD did not return requests for comment. The father was also ordered to pay the mother $8,000 in costs for the appeal.

As for sexual battery, the judges found there was no risk of serious physical injury to PP when he consented to sex with DD.

“His situation, as a man, is quite different from that of the woman,” Rouleau wrote. “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.” And also: “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.”

DD, meanwhile, lost her crossappeal against PP — she was appealing the decision by the lower court judge not to award costs after he threw out PP’s statement of claim.

In a preface to that costs decision, Superior Court Justice Paul Perell included the full lyrics to the Carly Simon song “What Shall We Do with the Child.”

He said awarding costs “would likely increase the acrimony” between the parties and make the situation even worse for the child.

“As is the case for the child in the song, someday the child that is at the centre of this case is going to ask about the circumstances of (his or her) coming into the world,” Perell wrote.

“It will not assist the parties in finding the answer to the child’s questions to rub the salt of costs into the wounds they have already inflicted on their relationship with that child by litigating about the circumstances of the child’s birth.

“Better, the parents should, whether apart or together, leave this all to the realm of song, preferably a lullaby.”