



COURT OF APPEAL FOR ONTARIO

CITATION: PP v. DD, 2017 ONCA 180

DATE: 20170302

DOCKET: C61720

Rouleau, Hourigan and Huscroft JJ.A.

BETWEEN

PP

Plaintiff (Appellant)

and

DD

Defendant (Respondent)

William A. Chalmers, for the appellant

Valois P. Ambrosino, for the respondent

Heard: September 23, 2016

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated January 11, 2016.

Rouleau J.A.:

[1]

In 2014, PP and DD met through a mutual friend and enjoyed a short
    romantic relationship that lasted for less than two months. They went out on a
    number of dates and engaged in ostensibly consensual sexual intercourse on several
    occasions. Based on his conversations with DD, PP understood that DD was taking
    the birth control pill and that she did not intend to conceive a child.

[2]

Several weeks after their sexual relationship ended, PP was surprised to
    learn from DD that she was 10 weeks pregnant. In early 2015, DD gave birth to a
    healthy child. According to DD, paternity testing confirmed that PP is the
    father.

[3]

PP brought a civil action for fraud, deceit, and fraudulent
    misrepresentation against DD, claiming as damages that the deception deprived
    him of the benefit of choosing when and with whom he would assume the
    responsibility of fatherhood. 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. He pleaded that he
    consented to sexual intercourse with DD on the understanding that she was using
    effective contraception. In his view, this was an express or implied
    misrepresentation and his consent was vitiated, having been obtained through
    deception and dishonesty.

[4]

This is an appeal from a decision granting DDs motion to strike PPs
    statement of claim without leave to amend:
PP v. DD
, 2016 ONSC 258,
    129 O.R. (3d) 175. In a contemporaneously released decision, the motion judge
    made a confidentiality order on his own motion, ordering that the parties not
    be identified by name and that the court file be sealed:
PP v. DD
,
    2016 ONSC 256, 262 A.C.W.S. (3d) 364.

A.

Background

[5]

The motion judge described the factual and procedural background of this
    appeal on the basis of the allegations in PPs statement of claim (which were
    assumed to be true for the purposes of the motion), PPs Answer to DDs Family Law
    Application, and information provided during the hearing. I will summarize that
    background as necessary to decide the appeal.

[6]

PP is a medical doctor and DD also works in the health care field. In
    the spring of 2014, they began dating at the suggestion of a mutual friend. Their
    first date was on May 14, 2014.

[7]

Three days later, on May 17, 2014, they went on a second date. On that
    occasion, they had dinner and retired to DDs apartment where they engaged in
    consensual sexual activity. During the course of that activity, PP asked DD
    whether she had any condoms. When she replied that she did not, he asked if she
    was on the pill. She told him that she was. After accepting this assurance
    from DD, PP consented to sexual intercourse that included intravaginal ejaculation.

[8]

PP and DD went on four more dates in the following three weeks. On each
    occasion, they again engaged in consensual sexual intercourse and DD did not
    say or do anything to suggest that her prior representations of fact with
    respect to being on the pill were not, or were no longer, true.

[9]

On June 10, 2014, they repeated the pattern of sexual activity that
    began on the second date, this time at PPs condominium. Prior to having sexual
    intercourse on that day, they discussed their practice of not using a condom.
    PP advised DD that he would happily wear one and that he did not want her to
    feel uncomfortable. DD stated that she preferred to have intercourse with him without
    a condom. Again, DD did not say or do anything to suggest that her prior
    representations of fact were not, or were no longer, true. They engaged in
    consensual sexual intercourse and intravaginal ejaculation.

[10]

There were two more dates in June 2014, during both of which the same
    pattern of sexual activity was repeated.

[11]

In July 2014, the pair decided to end their sexual relationship and
    agreed to remain friends. During the following weeks, they contacted one
    another several times by text message with respect to inconsequential matters.

[12]

In the early evening of August 10, 2014, PP received a text message from
    DD that shocked him, in which DD informed him that she was 10 weeks pregnant
    with his child. PP stated that he would call DD on his way to work. During that
    telephone conversation, DD told PP that she intended to deliver and keep the
    baby. PP stated that he thought she was on the pill, to which DD simply
    responded, yah. PP told DD he did not intend to have a child at that point in
    his life and, in shock, he suggested that DD have an abortion. She insisted
    that she would not do so, to which PP responded in anger: I dont want to have
    a baby with some random girl. I waited my whole life to decide who I have a
    baby with.

[13]

After ending the telephone conversation, they exchanged several text
    messages in which DD expressed confidence that she could raise the child on her
    own and stated that she did not want to force PPs involvement in the childs
    upbringing. She told PP that this random girl is fine doing it on her own. PP
    insisted that they meet to discuss the matter in person.

[14]

PP and DD arranged by text message to meet in a local park on August 20,
    2014. They met for approximately 20 minutes. During this meeting, PP asked DD
    if she had been taking the pill every day, to which she responded yes. When
    PP asked what pill she was on, DD looked away and did not respond. She said
    nothing about the name of the pill. PP inquired about the dates of DDs
    menstruation, to which she replied that she was unsure. She then informed him
    that she checked a pregnancy test six times immediately after PP returned from
    a trip abroad on June 22 and that, since then, she had had three ultrasounds.
    The meeting ended and they went their separate ways.

[15]

In early September, the pair communicated several times about DDs
    uncertainty with respect to whether PP was in fact the childs father. PP later
    had a paternity test, the results of which he still had not seen at the time of
    the motion. On September 18, DD contacted PP to advise him that he was the
    father and that she had decided to keep the child. PP expressed his
    disagreement and the pair did not communicate directly with one another after
    that time.

[16]

On March 28, 2015, DD delivered a healthy child. On the assumption he is
    in fact the father, PP maintains that he wishes to support and have a
    relationship with the child. PP and DD began negotiations through counsel for
    an interim agreement on child support.

[17]

On July 15, 2015, PP commenced his action for damages against DD. In his
    reasons, the motion judge noted that in this statement of claim PP sought to
    avoid child support obligations under the
Family Law Act
, R.S.O. 1990
    c. F.3 on the basis of DDs alleged fraudulent misrepresentation. However, that
    statement of claim was never served and a notice of discontinuance was filed on
    July 21, 2015. The statement of claim in the present action was issued on the
    same date.

[18]

PPs statement of claim asserts that, on the basis of DDs knowingly
    false representations with respect to her use of birth control and her implied intention
    not to conceive or deliver a child, he engaged in sexual intercourse that
    resulted in the birth of a child. He alleges that his consent was vitiated,
    having been induced by DDs misrepresentations that led him to believe she was
    taking the birth control pill as prescribed and directed. As the childs
    father, PP claims he has suffered damages. PP claims he has been deprived of
    the benefit of choice with respect to when, and with whom, he would conceive a
    child and raise a family.

[19]

PPs claim states that the particulars of his damages will be provided
    in the course of the proceeding in accordance with the
Rules of Civil
    Procedure
. He also seeks punitive damages.

[20]

Two days after the statement of claim was issued, on July 23, 2015, the
    pair signed an interim agreement for child support and access rights.

[21]

In September 2015, DD brought a motion to have PPs claim struck without
    leave to amend. In early October, DD commenced a Family Law Application for
    support and custody. In late October, PP served a jury notice in his civil
    action. Finally, on December 10, 2015, the day before the motion now on appeal
    was heard, PP delivered his Answer in the Family Law Application.

B.

The Decision Below

[22]

The motion judge granted DDs r. 21 motion to strike PPs claim without
    leave to amend. I will summarize the elements of his reasons for doing so that
    are relevant to this appeal.

[23]

First, the motion judge denied DDs request for an order, as alternative
    relief, to transfer the claims in the civil action into the family law court
    proceedings. He held that PPs civil action, in which he had delivered a jury
    notice, could not be joined with family law proceedings that must be tried
    without a jury pursuant to s. 108(2) of the
Courts of Justice Act
,
    R.S.O. 1990, c. C. 43.

[24]

The motion judge then noted that, on a motion under r. 21.01(1)(b), a
    statement of claim may be struck where, assuming the facts pleaded are true, it
    is plain and obvious that the pleading discloses no reasonable cause of action.
    He acknowledged that the standard is very low for the demonstration of a reasonable
    cause of action on a r. 21 motion. However, he also cited
Frame v. Smith
, [1987] 2 S.C.R. 99
, at para. 36, for
    the proposition that in litigation involving children a more stringent
    standard may be imposed in order to ensure the childrens best interests are
    protected. The motion judge stated that he would apply that more stringent
    standard to the present case.

[25]

The motion judge held that the claim of fraudulent misrepresentation could
    not be made out. He determined that PP is only suing in fraudulent
    misrepresentation because he had a non-pathological emotional shock from
    becoming a parent (para. 74). In the motion judges view, fraudulent misrepresentation
    is an economic or pecuniary loss tort, for which damages are meant to restore a
    party to the financial circumstances he or she was in prior to relying on the
    misrepresentation. As a result, it was plain and obvious that a fraudulent
    misrepresentation claim for damages for what the motion judge labelled as non-pathological
    emotional harm resulting from an unplanned parenthood could not succeed.

[26]

The motion judge took issue with PPs allegation that his consent to
    sexual activity was vitiated by fraud. The judge noted that lack of consent is
    not a constituent element of a claim for fraudulent misrepresentation. In his
    view, vitiated consent is the effect and not the cause of a fraudulent
    misrepresentation.

[27]

In addition, the motion judge held that PP should not be allowed to
    extend the scope of the tort of fraudulent misrepresentation to circumvent the
    legal boundaries of the torts of intentional infliction of mental suffering or
    negligence. He identified those two torts as the conventional legal tools for
    civil redress against misconduct causing emotional harm.

[28]

With respect to negligence, the motion judge held that the
    non-pathological emotional harm claimed by PP did not rise to the level of
    compensable damage for personal injury:
Mustapha v. Culligan of Canada Ltd.
,
    2008 SCC 27, [2008] 2 S.C.R. 114, at para. 9.

[29]

Similarly, in the motion judges view, a claim for intentional
    infliction of mental suffering could not succeed, in part because the
    constituent elements of that tort include damage in the form of a visible and
    provable illness: see, e.g.,
Frame v. Smith
, at para. 46;
Prinzo
    v. Baycrest Centre for Geriatric Care
(2002), 60 O.R. (3d) 474 (C.A.), at
    para. 43.

[30]

Citing further from the reasons of Wilson J. in
Frame v. Smith
,
    at paras. 46-47, the motion judge held that it was plain and obvious that the
    civil claim before him should not be permitted to extend the tort of fraudulent
    misrepresentation into the context of a family law conflict of this nature.
    This is because it would not appear to be in the best interests of children to
    do so.

[31]

Finally, the motion judge recognized the possibility that, although it
    was not pleaded, PPs pleadings could support a cause of action for civil
    sexual assault (sexual battery). In his view, this is the conventional legal
    tool for civil redress against sexual misconduct. The motion judge noted that
    such a claim is provable without any damages having been suffered beyond the
    invasion of ones bodily integrity.

[32]

After reviewing the jurisprudence on fraud vitiating consent in the
    context of sexual battery, the motion judge determined that PPs pleading might
    indeed disclose a claim for sexual battery. However, he declined to grant PP
    leave to deliver a fresh as amended statement of claim expressly pleading such
    a claim. The decisive factor was that PPs novel sexual battery claim was, in
    the motion judges view, focused on the non-pathological emotional harm of an
    unplanned parenthood. In other words, the motion judge found that PPs sense of
    violation arose not from the sexual touching to which he ostensibly consented,
    but from the spoiling of his later plans by the birth of an unplanned child.

[33]

For the same reasons that a fraudulent misrepresentation claim could not
    succeednamely that it was based on the non-pathological emotional harm of
    unplanned parenthoodit was plain and obvious to the motion judge that the
    claim did not come within the ambit of the tort of sexual battery.

[34]

In a subsequently released decision, the motion judge declined to make
    any order as to costs:
PP v. DD
, 2016 ONSC 814, 263 A.C.W.S. (3d) 322.
    As he explains in his reasons, this was because the issues were novel and
    important, and neither party was wrong in seeking access to justice. Further,
    the motion judge determined that awarding costs would likely increase the
    acrimony between the parties and thus complicate the proceedings in the Family
    Court and make this sad story worse for the child whose birth has become a
    source of emotional grief (para. 9).

C.

Issues On Appeal

[35]

The appellant raises several grounds of appeal. In my view, accepting as
    true the fact situation as pleaded by the appellant, the appeal can be resolved
    by answering two questions. First, can the appellant, as an aggrieved father,
    recover damages from the respondent, the mother, for involuntary parenthood? In
    the absence of recoverable damages, a claim of negligent or fraudulent
    misrepresentation cannot succeed. Second, can the alleged fraudulent
    misrepresentation as to the use of contraceptives vitiate the appellants
    consent to sexual touching for the purpose of advancing a claim of battery in
    these circumstances?

[36]

I would answer both of these questions in the negative and dismiss the
    appeal.

D.

Discussion

(1)

Can the appellant recover damages arising from the childs birth?

[37]

Central to the motion judges dismissal of the appellants claim for
    fraudulent misrepresentation is his conclusion that there were no recoverable
    damages. The appellant argues that the motion judge erred in several respects
    on the issue of damages.

[38]

First, the appellant argues that a simple plea that he has suffered
    damages is sufficient. Second, notwithstanding his submission that the motion
    judge erred in characterizing the claim as one for damages for non-pathological
    emotional harm from unplanned parenthood, the motion judge described the claim
    for damages as novel and as such, the appellant argues, it ought to be
    allowed to proceed to trial. Third, he argues that he ought to have been permitted
    to amend his pleading to allege other potential loses he has suffered or will suffer
    such as, he submits, the negative impact on his career and income earning
    capacity resulting from his having to spend time with his unwanted child.

[39]

I agree with the motion judges conclusion that the appellant has not
    made out a viable claim for fraudulent misrepresentation. Such a claim cannot
    succeed in the absence of recoverable damages. It is not sufficient to simply allege
    that damages were suffered; there must be a basis for the claim that a loss has
    been suffered for which the law allows recovery of damages.

[40]

The appellant places particular reliance on the
obiter
comment
    of Cory J. in
R. v. Cuerrier
, [1998] 2 S.C.R. 371, at para. 135, that
    [f]raud which leads to consent to a sexual act but which does not have [a
    significant risk of serious bodily harm] might ground a civil action. In the
    motion judges view, while this may be true, that civil action would not be fraudulent
    misrepresentation for damages for non-pathological emotional harm. I agree
    with that conclusion and, as I will explain, none of the damages allegedly suffered
    by the appellantbe they the damages set out in the claim or those argued in
    the course of submissions by counselare properly recoverable in a tort claim.

[41]

To succeed on a civil claim for fraudulent misrepresentation, the
    appellant must establish the following: (1) the representation was made by the
    respondent; (2) the respondent knew that the representation was false or was
    recklessly indifferent to its truth or falsity; (3) the false statement was material
    and by it the appellant was induced to act; and (4) the appellant suffered damages:
Bruno Appliance and Furniture, Inc. v. Hryniak
, 2014 SCC 8, [2014] 1
    S.C.R. 126, at para. 21; see also
Parna v. G&S Properties Ltd
.
    (1970), 15 D.L.R. (3d) 336 (S.C.C.) at p. 344.
[1]
The Supreme Court of Canada has consistently recognized that fraud without
    damage gives . . . no cause of action
:
Hryniak
at para. 20.

[42]

The appellant maintains that the pleading has made out all of the
    required elements for fraudulent misrepresentation including damages. In his submission,
    the damages claimedbe they for non-pathological emotional harm or for disruption
    of his career and financeswhile perhaps novel, should be left to be determined
    after a trial.

[43]

I have concluded that the appellant has not made out a viable claim for
    recoverable damages. As I will explain, I regard it as plain and obvious that those
    damages are not and, as a matter of legal policy, ought not to be recoverable
    by way of a fraudulent misrepresentation action.

[44]

Before proceeding with my analysis of the damages issue, I will briefly
    summarize the alleged facts on which my analysis and conclusion are based.

[45]

The relevant facts drawn from the pleading, which for the purpose of this
    motion are assumed to be true, can be summarized as follows:

(1)

The parties developed an amorous relationship that included repeated vaginal
    sexual intercourse;

(2)

The appellant agreed to have unprotected sex with the respondent and,
    although he accepted the risk of pregnancy that exists when a sexual partner is
    taking contraceptive pills, he was not prepared to accept the risk of pregnancy
    if the respondent was not taking any contraceptives;

(3)

The appellant has not suffered any physical injury or any emotional harm
    that is pathological in nature;

(4)

The appellant was not exposed to any known risk of bodily harm because
    of the sexual intercourse;

(5)

The respondent became pregnant and a healthy child was born of their
    relationship;

(6)

There was no alleged misrepresentation by the respondent other than with
    respect to the use of contraceptives and, implicitly, that she intended to
    avoid getting pregnant; and

(7)

The appellant is male and, as father of the child, has legal as well as
    moral responsibilities toward that child.

[46]

Although it was not presented in this way, the claim can be viewed as a tort
    claim for involuntary parenthood made by one parent against the other. It is
    clear that the alleged damages do not relate to a physical or recognized
    psychiatric illness. In essence, the damages consist of the appellants emotional
    upset, broken dreams, possible disruption to his lifestyle and career, and a potential
    reduction in future earnings, all of which are said to flow from the birth of a
    child he did not want. Although the claim is not for the direct costs
    associated with raising the child, all of the damages claimed by the appellant are
    the result of consequences flowing from the unwanted birth of a child, albeit
    unwanted only by the father.

(a)

The damages issue in involuntary parenthood cases

[47]

There have been numerous cases dealing with involuntary parenthood both
    in Canada and abroad. These normally involve law suits brought by parents
    against health care providers whose negligence resulted in the unwanted birth
    of a child. Recovery in such claims has generally been allowed for the damages
    suffered as a result of the pregnancy and birth of the child, but not for the
    cost associated with the mere fact of having become a parent or raising a
    healthy child. Although some jurisdictionssuch as Quebec (see
Suite c.
    Cooke
, [1995] R.J.Q. 2765 (Que. C.A.)), New Brunswick (see
Stockford
    v. Johnston
, 2008 NBQB 118, [2008] 335 N.B.R. (2d) 74), and Australia (see
Cattanach v. Melchior
, [2003] H.C.A. 38, (2003), 199 A.L.R. 131)have
    allowed some form of recovery for the cost of raising a healthy child,
[2]
Ontario courts have, to date, generally
    not followed that approach in involuntary parenthood cases: see
Paxton v.
    Ramji
, 2008 ONCA 697, [2008] 92 O.R. (3d) 401, at n. 7. In the oft-cited
    case of
Kealey v. Berezowski
(1996), 30 O.R. (3d) 37 (Ont. C.J.), Lax
    J. discussed the question at length and held that, while the general principles
    for the award of damages for child-rearing costs should evolve on a case-by
    case basis,

[t]he responsibilities and the rewards [of rearing a child] are
    inextricably bound together and do not neatly balance one against the other, at
    least not in the case of children. Who can say whether the time, toil and
    trouble, or the love, guidance and money which parents devote to a child's care
    and upbringing, will bring rewards, tangible or intangible, today, tomorrow or
    ever. No court can possibly determine this in any sensible way. Nor should it
    attempt to do so The responsibilities and the rewards cancel each other out.

[48]

The issue of damages in involuntary parenthood cases was extensively
    considered by the House of Lords in
McFarlane v. Tayside Health Board
    (Scotland)
, [1999] 4 All E.R. 961,
    [2000] 2 A.C. 59
and again in
Rees v. Darlington Memorial
    Hospital NHS Trust
, [2003] UKHL 52,
    [2004] 1 A.C. 309
. Both of these cases dealt with the most common
    form of such claims, that is, those brought by one or both parents against
    third-party health care providers.

[49]

In
McFarlane
, the plaintiffs husband had a vasectomy and was
    advised that his sperm count was nil and that contraceptive precautions were no
    longer necessary. The couple acted on that advice and the plaintiff
    subsequently became pregnant and delivered a healthy child. The parents alleged
    that they had suffered loss as a result of the health boards negligence. The
    plaintiff sought damages from the health board for pain and suffering arising
    out of pregnancy and labour as well as for the financial consequences of the
    parents duty to raise the child, whom they loved and cared for as an integral
    part of their family.

[50]

The House of Lords was unanimous in rejecting the claim for the financial
    cost of raising a healthy child. Although the reasoning adopted by each of the
    Lords varied, the ratio was fairly summarized in a lecture made to the Personal
    Injury Bar Associations Annual Conference in 2003 by Sir Roger Toulson, the
    chairman of the Law Commission. He described the House of Lords reasoning as
    follows:

Although at a detailed level there are therefore significant
    differences between the judgments, at a broader level two features dominate
    them. These are, first, the incalculability in monetary terms of the benefits
    to the parents of the birth of a healthy child; and, secondly, a sense that for
    the parents to recover the costs of bringing up a healthy child ran counter to
    the values which they held and which they believed that society at large could
    be expected to hold.

[51]

In the subsequent involuntary parenthood case of
Rees
,
the plaintiff was a mother who did not
    want a child as she was severely visually disabled and would find it difficult
    to raise the child. As a result of the negligence of the health care provider,
    she gave birth to a healthy child. The House of Lords confirmed its decision in
McFarlane
and denied any recovery for the costs of raising the healthy
    child. In
Rees
, however, a majority of the House for different reasons
    supported a modest conventional award of £15,000 to the plaintiff mother who was
    raising the child (the father having taken no interest in the child), as a
    nominal, non-compensatory recognition of the mothers loss of autonomy.

[52]

In
Rees
, the Lords unanimously declined to reconsider the
    holding in
McFarlane
, upholding that decisions refusal to grant
    recovery of the costs of the childs upbringing. In his speech, Lord Millett reiterated
    his view, as expressed in
McFarlane
:

In my opinion the law must take the birth of a normal, healthy
    baby to be a blessing, not a detriment. In truth it is a mixed blessing. It
    brings joy and sorrow, blessing and responsibility. The advantages and the
    disadvantages are inseparable. Individuals may choose to regard the balance as
    unfavourable and take steps to forgo the pleasures as well as the
    responsibilities of parenthood. They are entitled to decide for themselves
    where their own interests lie. But society itself must regard the balance as
    beneficial. It would be repugnant to its own sense of values to do otherwise.
    It is morally offensive to regard a normal, healthy baby as more trouble and
    expense than it is worth.

[53]

While the decision is controversial,
[3]
it is nonetheless relevant. In my view, the Lords reasoning to the effect that
    the kind of damage sought by the appellant is fundamentally incalculable and not
    recoverable in tort has particular force in the circumstances of this case, namely
    where a father claims damages as against a mother for the emotional and/or
    economic costs associated with the rearing of a healthy child.

[54]

There is no determinative precedent in Canada respecting a claim by one
    or other parent against a third party for involuntary parenthood involving a
    healthy child and that issue is not before us in this case. However, the incalculability
    of any purported loss is particularly acute where the claim is made not by the
    parents as against a third party, but by one parent as against the other parent
    with whom he shares equally the legal and moral responsibility of maintaining
    the child. As I will discuss further below, to award damages in this case would
    be contrary to the spirit and purpose of Ontarios statutory family law regime.

(b)

The irrelevance of fault in Ontarios custody and child support regime

[55]

As I have noted above, this is not a claim being advanced by unwilling
    parents as against a third party. Rather, it is a claim being advanced by the
    unwilling father against the mother, who does not claim to be an involuntary
    parent and who has willingly taken on the responsibility of raising the child.
    In effect, the father is claiming that, to the extent that he views the birth
    as a disadvantage to himselfemotionally, professionally and/or financiallythe
    mother, who has agreed to raise the child, must compensate him. Presumably, the
    more time and resources the appellant devotes to the child, the more his income
    and career will suffer and the more the respondent will have to pay.

[56]

It is to be hoped that the appellant will, as the childs father,
    contribute to the childs upbringing in a positive way. It is also hoped that
    he will see this contribution as being pleasurable and positive. 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.

[57]

To allow the appellant to recover damages as against the respondent for
    the unwanted birth in the circumstances of this case would, in my view, run
    against the clear trend in the law moving away from fault based claims in the
    family law context.

[58]

Since the 1970s, Canadian jurisdictions have moved away from a fault
    based divorce and child support regime. The 1976 Law Reform Commission of
    Canadas Report on Family Law (Ottawa: Information Canada, 1976) put it as
    follows, at p. 18:

[There should be] a process that offers no legal confirmation
    of a spouses contention that he was right and she was wrong, that she is
    innocent and he is guilty, that one is good and the other is bad. No legal
    results should be allowed to follow from such claims or accusationsnot
    dissolution, not financial advantage, not a privileged position vis-à-vis the
    children.

[59]

In
Frame v. Smith,
at para. 9, La Forest J. similarly emphasized
    the undesirability of provoking suits within the family circle. As he
    explained, such claims brought by one parent against another should not often be
    allowed since they are in most cases detrimental to the parties involvedespecially
    to the welfare of the childand will invite a flood of cases. See also
Louie
    v. Lastman
(2001), 54 O.R. (3d) 301 (S.C.J.), at para. 31, affirmed
    (2002), 61 O.R. (3d) 459 (C.A.), and
Saul v. Himel
(1994), 9 R.F.L.
    (4th) 419 (Ont. Gen. Div.), at para. 20, affirmed (1996), 22 R.F.L. (4th) 226
    (Ont. C.A.).

[60]

Further, La Forest J. held in
Frame
that clear legislative
    action with respect to child custody and access rights was determinative in
    that case and precluded any possible judicial initiative in that area through
    the development of tort law. It was obvious to him that the legislature
    intended to devise a comprehensive scheme that precluded the availability of
    civil actions in such family disputes as the one before him: see
Frame
,
    at paras. 11-12.

[61]

When a couples dispute involves costs related to their child, the
    imposition of civil liability raises similar concerns. It is well established
    that child support is the right of the child: see, e.g.,
D.B.S v. S.R.G.
,
    2006 SCC 37, [2006] 2 S.C.R. 231, at para. 38. There is a corresponding
    obligation placed equally upon both parents to financially support the child:
Paras v. Paras
, [1971] 1 O.R. 130 (C.A.). The Supreme Court of Canada has
    confirmed that:

the obligation of both parents to support the child arises at
    birth. In that sense, the entitlement to child support is automatic and both
    parents must put their childs interests ahead of their own in negotiating and
    litigating child support (
Kerr v. Baranow
, 2011 SCC 10, [2011] 1
    S.C.R. 269, at para. 208).

[62]

The child support obligation of a parent in Ontario is legislated in s.
    31(1) of the
Family Law Act
, which clearly states that every parent
    has an obligation to provide support for his or her child to the extent that
    the parent is capable of doing so. The legislative scheme for child support is broad,
    and does not take blame into account in relation to the manner of conception.
[4]
The statutory remedies available
    to ensure support for the child flow from the simple fact of being a parent as
    defined by statute.

[63]

It would be contrary to the spirit, purpose and policy reflected in Ontarios
    no-fault child support regime to view parents as equally responsible for maintaining
    a child but, at the same time, to allow recovery by the appellant 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 childs upbringing.

[64]

The appellant asserts that he accepts and has complied with his
    statutory duty to pay child support. Nevertheless, the appellant seeks to
    recover in excess of $4 million in damages from the childs mother in
    compensation for losses flowing from the childs birth and his responsibilities
    toward that child. In the circumstances of this case, to allow the appellants
    claim would, in effect, be to allow the appellant to circumvent the equal obligations
    to the child imposed on parents by lawobligations that are imposed without
    regard to fault or intention.

[65]

Little would distinguish this proposed claim from claims other parents may
    decide to bring against their former spouses or sexual partners seeking compensation
    for the burdens imposed on them by the birth of an unwanted child, where it is
    claimed that the childs conception was the result of a misrepresentation,
    duress, or even the negligence of the former spouse or sexual partner with
    respect to matters such as fertility or contraceptive use or misuse. Such
    actions would engender disharmony between mothers and fathers and would be
    contrary to the spirit of this provinces family law legislation.


[66]

With the above in mind, I would observe that appellate courts in the
    United States have decided a number of cases highly analogous in their facts to
    the present one. In
Barbara A. v. John G.
(1983), 145
    Cal. App. 3d 369
, the California Court of Appeal, 1
st
District, articulated its understanding of the ratio in the earlier case of
Stephen
    K. v. Roni L.
(1980), 105 Cal. App. 3d 640
,
a case in which a
    father had brought a cross-complaint in a paternity suit claiming damages
    against the mother, alleging that she had falsely represented that she was
    taking birth control pills and thereby induced him to engage in sexual
    intercourse that led to the birth of a child unwanted by him. In discussing
Stephen
    K.
, the court emphasized its concern that to allow one parent to sue the
    other over the wrongful birth of their child, and thereby to use the child as the
    damage element in a tortious claim of one parent against the other, would
    effectively erase much or all of the former parents financial support
    obligation. In that courts view, this type of action would seldom, if ever,
    result in a benefit to the child or be consistent with that states family law
    legislation, which was designed to reduce acrimony between disputing parents.

[67]

In
Henson v. Sorrell
, 1999 WL 5630, the Court of Appeals of
    Tennessee referred to a number of other cases from a variety of American
    jurisdictions in which the father of a child has attempted to recover damages
    from the mother because of false representations concerning birth control use.
[5]
The court noted that such claims
    have been universally rejected. Again, in
Wallis v. Smith
(2001), 130
    N.M. 214, the Court of Appeals for New Mexico dismissed precisely such a claim on
    the express basis that it would effectively allow the plaintiff to circumvent the
    legislative policy reflected in that states statutory child support
    obligations. Although there are differences between the family law regimes in these
    United States jurisdictions and their equivalent in Ontario, the underlying
    principle is the same.

[68]

For these reasons, as a matter of legal policy the alleged damages should
    not be recoverable in tort. Therefore, this is not the kind of novel claim that
    ought to be allowed to proceed to a protracted and expensive trial: see
Arora
    v. Whirlpool Canada LP
, 2013 ONCA 657, [2013] 118 O.R. (3d) 113, at para.
    94.

(2)

The potential claim in battery

[69]

I turn now to the appellants submission that, for the purpose of
    advancing a claim in battery, the misrepresentation of the respondent vitiated
    the appellants consent to sexual intercourse.

[70]

In
Non-Marine
    Underwriters, Lloyds London v. Scalera
, 2000 SCC 24, [2000] 1 S.C.R. 551,
    McLachlin J. (as she then was), writing for the majority, set out the purpose
    and features of the tort of battery, at para. 15:

The tort of battery is aimed at protecting the personal
    autonomy of the individual. Its purpose is to recognize the right of each
    person to control his or her body and who touches it, and to permit damages
    where this right is violated. The compensation stems from violation of the
    right to autonomy, not fault. When a person interferes with the body of
    another, a
prima facie
case of violation of the plaintiffs autonomy is
    made out. The law may then fairly call upon the person thus implicated to
    explain, if he can. If he can show that he acted with consent, the
prima
    facie
violation is negated and the plaintiffs claim will fail.

[71]

The constituent elements of the tort of sexual battery are the same as
    those of the tort of battery. That is, the plaintiff must prove on a balance of
    probabilities that the defendant intentionally touched the plaintiff in a
    sexual manner. To prove a battery, the plaintiff must also demonstrate that the
    interference with his or her body was harmful or offensive, but this
    element is implied (assuming a lack of consent) in the context of a sexual
    battery:
Scalera
, at para. 22.

[72]

An apparent consent to sexual touching will be invalid if it has been
    obtained by duress,
force or threat of force,
    given under the influence of drugs, secured through deceit or fraud as to the
    nature of the defendants conduct, or obtained from someone who was legally
    incapable of consenting or where an unequal power relationship is being
    exploited
:
Norberg v. Wynrib,
[1992] 2 S.C.R. 226 at pp.
    246-47. For the purpose of this appeal, I will focus only on fraud.

[73]

In
Linden and Feldthusen,
Canadian
    Tort Law
(10th ed.) (Toronto:
    LexisNexis, October 2015)
, the authors explain that not all forms
    of fraud will undermine consent to sexual touching. As they state at p. 82, the
    key question is whether the deceit goes to the nature and quality of the act.
    Consent to sexual touching will normally remain operative if the deceit relates
    not to the nature and quality of the act, but instead to some collateral
    matter.

[74]

Reported cases involving fraud pertaining to the nature or quality of the
    act are frequently cases of criminal sexual assault. Criminal sexual assault
    and tortious sexual battery typically involve the same wrongful act, namely
    non-consensual sexual touching, and in such cases the difference lies in the
mens
    rea
and standard of proof that must be established: see
Scalera
,
    at para. 111.
[6]
For the purpose of determining whether consent to sexual touching is operative
    in the face of fraud or deceit, such criminal cases are therefore instructive. Cases
    of fraud as to the nature or quality of the act have included circumstances
    where, for example, a choir-master had sexual intercourse with a young student
    under the pretense that it would improve her singing (
R. v. Williams
,
    [1923] 1 K.B. 340 (U.K. Ct. Crim. App.)) and where a woman consented to sexual
    intercourse under the belief that it would cure certain physical disorders (
R.
    v. Harms
, [1944] 2 D.L.R. 61 (Sask. C.A.)).

[75]

Likewise, fraud pertaining to the identity of the sexual partner will
    undermine consent. This court has upheld a criminal conviction for sexual
    assault where the complainant mistakenly believed her sexual partner was her
    boyfriend when it was in fact his identical twin brother and where the twin was
    reckless or wilfully blind as to whether his identity was clear to the
    complainant (
R. v. G.C.
, 2010 ONCA 451, [2010] 256 C.C.C. (3d) 234,
    leave to appeal refused, [2010] 3 S.C.R. v (note)).

[76]

The appellant relies on
R. v. Hutchinson
, 2014 SCC 19, [2014] 1
    S.C.R. 346, a case wherein the courtin interpreting the
Criminal Code
provisions
    relating to sexual assaulttook the opportunity to both summarize and clarify
    the law as to when fraud vitiates a complainants consent to sexual touching. In
Hutchinson
, the majority made clear that the analysis of whether
    consent to sexual touching is operative involves two questions. First, the
    court must determine whether the complainant validly consented to the sexual
    activity in question. Second, if so, the court must consider whether there are
    any circumstances that may vitiate the complainants apparent consent:
Hutchinson
,
    at para. 4.

[77]

With respect to the first question, the Supreme Court confirmed the earlier
    case law and the above-noted view of Linden and Feldthusen, insofar as fraud
    going to the nature and quality of the act will undermine consent. Where
    there is a deception or mistaken belief with respect to either the identity of
    the sexual partner or the sexual nature of the act itself, no consent to sexual
    touching will have been obtained: see
Hutchinson
, at para. 57.

[78]

In the present case there is no issue as to whether there was deception
    concerning the identity of the sexual partner or the sexual nature of the act
    itself. The appellant concedes that he consented to sexual intercourse with the
    respondent. His precise allegation is that his otherwise valid consent was
    vitiated in the circumstances by fraud.

[79]

This takes me to the second question in
Hutchinson
, namely what
    types of fraud will vitiate consent to sexual activity. Here the court
    confirmed the approach it took in the cases of
R. v. Cuerrier
, [1998]
    2 S.C.R. 371 and
R. v. Mabior
, 2012 SCC 47, [2012] 2 S.C.R. 584. That
    is, for consent to be vitiated by fraud there must be: (1) dishonesty, which
    can include the non-disclosure of important facts; and (2) a deprivation or
    risk of deprivation in the form of serious bodily harm that results from the
    dishonesty:
Hutchinson
, at para. 67.

[80]

In
Hutchinson
,
the accused punctured holes in a condom that he then used to have intercourse
    with the complainant. As a result, unbeknownst to the complainant the sex was
    unprotected and the intercourse gave rise to a significant risk of serious
    bodily harm, namely becoming pregnant with all of its attendant risks.

[81]

The majority in
Hutchinson
considered that the presence or
    absence of a condom during sexual intercourse does not affect the specific physical
    sex act to which the complainant consented, namely sexual intercourse, but is rather
    a collateral condition to that sexual activity. In the majoritys view, so
    long as there is consent to sexual intercourse, this general consent is not
    vitiated by dishonesty about condom use unless it exposes the individual to a deprivation
    or risk of deprivation in the form of serious bodily harm which results from the
    dishonesty (para. 67). On the facts of
Hutchinson
,
the deprivation consisted of denying the
    woman the benefit of choosing not to become pregnant by making her pregnant,
    or exposing her to an increased risk of becoming pregnant and thereby exposing
    her to a significant risk of serious bodily harm. This was based on the
    majoritys understanding that harm includes at least the sorts of profound
    changes in a womans body resulting from pregnancy (paras. 69-72).

[82]

In
Hutchinson
, therefore,
    the Supreme Court clarified that deception with respect to contraceptive
    practice does not go to the nature and quality of the actor, in the words of
    the
Criminal Code
, to the sexual activity in questionbut that it may,
    nevertheless, vitiate consent to sexual touching where the fraud gives rise to a
    significant risk of serious bodily harm, which includes the risk of pregnancy.
    The majority also made it clear, however, that:

[t]o establish fraud, the dishonest act must result in a
    deprivation that is equally serious as the deprivation recognized in
Cuerrier
and in this case [namely, a significant risk of serious bodily harm]. For
    example, financial deprivations or mere sadness or stress from being lied to
    will not be sufficient (para. 72).

[83]

In summary, therefore, absent any concerns about bodily harm, the test
    for invalid or vitiated consent has not changed from that set out by the
    authors in
Canadian Tort Law
. With the one exception of deceit giving
    rise to a significant risk of serious bodily harm, in which case consent may be
    vitiated, the question continues to be whether the alleged deception relates to
    the specific sexual act undertaken and/or to the identity of the sexual partner.

[84]

As a result, I do not view
Hutchinson
as being of any
    assistance to the appellant. In the present case, the intercourse between the
    two known partners occurred consensually on many occasions. The appellants consent
    to sexual activity was meaningful, voluntary, and genuine. As the appellant
    concedes, he consented to unprotected sex and was fully informed as to the
    respondents identity and as to the nature of the sexual act in which the
    parties voluntarily participated. The touching involved was wanted and would
    have occurred in the same way except that, but for the alleged
    misrepresentation, the appellant would have used a condom. Not wearing a condom
    did not increase the appellants risk of serious physical injury.

[85]

As the motion judge found, the appellants alleged damage is principally
    emotional harm or, in other words, hurt feelings and lost aspirations and/or
    career opportunities flowing from the birth of his child. His situation, as a
    man, is quite different from that of the woman. 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. Moreover, 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.

[86]

The alleged deception in this case was not with respect to the nature of
    the act, but only as to the likely consequences flowing therefrom. The sexual
    contact in this case was consented to and there were no physically injurious
    consequences. There was therefore no violation of the appellants right to physical
    or sexual autonomy that would give rise to a claim in battery. This is not to
    minimize the significance of fathering a child and the legal and moral
    responsibilities that ensue therefrom, nor to condone the alleged conduct of
    the respondent. The issue is only whether the alleged misrepresentation is
    actionable and whether, if proven, it would constitute the tort of battery. In
    my view, it would not.

(3)

Cross-appeal

[87]

The respondent has cross-appealed on the issue of costs. As set out
    earlier, the motion judge exercised his discretion not to award costs on the
    basis that the issues were novel and important and, in addition, that he
    considered that an award of costs would further complicate the proceedings in
    the family court. Motion judges have broad discretion in the award of costs and
    their decisions are entitled to deference on appeal. I see no basis on which to
    interfere with the motion judges exercise of discretion in this case.

E.

Conclusion

[88]

In conclusion, therefore, I would dismiss both the appeal and the
    cross-appeal.

[89]

The respondent seeks costs of the appeal in the amount of $18,385.74. In
    my view, the amount claimed is somewhat high and substantially exceeds the
    costs incurred by the appellant. As a result, I would award the respondents
    costs fixed in the amount of $8,000, inclusive of disbursements and applicable
    taxes.

Paul Rouleau J.A.

I agree C.W. Hourigan
    J.A.

I agree Grant Huscroft
    J.A.

Released: March 02, 2017





[1]
As this court noted in
Singh v. Trump
, 2016 ONCA 747, [2016] O.J. No.
    5285, at para. 141, it is not entirely clear from the recent case law that an
    intention that the false representation be acted upon is a necessary element of
    a fraudulent misrepresentation claim, but that is immaterial to the present
    appeal.



[2]
The result in
Cattanach
was subsequently modified by legislation in
    three Australian states, essentially restricting recovery for involuntary
    parenthood to the extra cost of raising a child born with a disability: see B. Feldthusen,
    Supressing Damages in Involuntary Parenthood Actions, (2014) 29
Can. J.
    Fam. L.
11, n.12.



[3]
See, for example: J. K. Mason,
The Troubled Pregnancy: Legal Wrongs and
    Rights in Reproduction
(Cambridge: CUP, 2007), at p. 163; J. C. Thompson, You
    Should Never Look a Gift Horse in the Mouth: One-Size-Fits-All Compensation in
    Wrongful Conception (2012) 2
Westminster Law Review
73-96; N. M.
    Priaulx, Damages for the Unwanted Child: Time for a Rethink? (2005) 73
Medico-Legal
    Journal
152-63; B. Feldthusen, Supressing Damages,
supra
.



[4]
As reflected in recent amendments to the
Children's Law Reform Act
,
    R.S.O. 1990, c. C.12, the manner of conception may well be relevant, in itself,
    to the presumption of parentage for the purposes of determining child support
    obligations under the
Family Law Act
, for example in the case of
    insemination by a sperm donor. PPs parentage is not disputed here and those
    issues are distinct from the case at bar.



[5]
See also A. M. Payne, Sexual Partner's Tort Liability to other Partner for
    Fraudulent Misrepresentation Regarding Sterility or Use of Birth Control
    Resulting in Pregnancy, (1992) 2
A.L.R.
5th 301.



[6]

Although it is not relevant to this case, I note that the
    offence of assault (including sexual assault), unlike the tort of battery, need
    not necessarily include physical touching:
Criminal Code
, R.S.C. 1985,
    c. C-46, s. 265.


