Andy Hayher
She Said She Was On The PillA recent decision from the Ontario Superior Court dealt with the issue of a party being “tricked” and having to deal with a child support application from a former partner whom they thought was unable to conceive by virtue of using contraception or because of a medical issue. These stories are nothing new to family law practitioners: “She told me she was on the pill;” “She said there were medical issues that prevented her from getting pregnant;” or the infamous “She told me she did not want a child.” Often, when the father is pressed on why he took no steps to prevent the pregnancy, the response is inadequate, but not surprising: “I believed her.” The decision of P.P. v. D.(D.), explores this issue in detail.

The father in this case was a medical doctor and had a number of dates with the mother, which eventually led them to be intimate. The father confirmed with the mother that she was using a form of birth control (“the pill”) and the mother expressly told the father that she was. The father stated that he believed the parties had a common intention of being intimate and to avoid a pregnancy. The father said that had he known the risk of the mother getting pregnant he would not have been intimate with her. After nine dates the parties ended the physical relationship but determined that they wanted to remain friends. Shortly thereafter, the father received a text message from the mother stating that she was ten weeks pregnant.

The father reacted very badly to the news. The mother in turn reacted badly to the father reacting badly to the news. However, things were about to get worse. The father began a claim under the Rules of Civil Procedure (Civil Court not Family Court) claiming that he relied on the mother’s representations that (1) she was taking birth control; (2) that she did not want to get pregnant; and (3) that her claim that she did not want to have a child was deliberate, willful and conscious distortions of the truth and that those statements were made intentionally to have the father act on those statements. As a result of the deception the father claimed damages.

The trial judge completed a careful analysis of the tort of fraudulent misrepresentation during the case and ultimately determined that a claim for emotional harm for fraudulent misrepresentation did not lie. The father was seeking compensation for “non-pathological emotional harm of unplanned fatherhood.” In other words, as a result of the mother’s fraudulent misrepresentation, he was denied the opportunity to be a father at the time of his choosing, and this has suffered non pathological emotional harm as a consequence.

The tort of fraudulent misrepresentation is normally an economic loss tort. In this case the trial judge found that the father did not suffer any financial loss and no financial loss was particularized in the Statement of Claim. The fact that the father would now have to pay child support was not considered to be a financial loss. In fact, the trial judge relied on the dissent in the Supreme Court of Canada decision of Frame v. Smith for the position that extending torts into the family law context was not in the best interests of children.

In Phil Epstein, QC’s review of this decision he points out that this is an important decision for a number of reasons. Particularly, he says “one can only imagine the number of lawsuits that would have arisen if the decision had gone the other way.” As Justice Backhouse said in Lee v. Riley: “People should be honest but it is well known that frequently they are not.”