Man Unable to Win Damages for Emotional Harm of an Unplanned Parenthood

Written on behalf of Arbesman Hamilton LLP

The Ontario Court of Appeal has upheld the dismissal of a claim filed by a man seeking $4 million in damages from his ex-partner for giving birth to their child without his consent. In his claim, the Plaintiff sought damages for “non-pathological emotional harm of an unplanned parenthood.”

The Plaintiff appealed to the Court of Appeal after a trial judge found no legal basis for his claim.

The Back Story

The Plaintiff met the Defendant in 2014 through a mutual friend. They had a brief relationship, which lasted for two months. During that time they engaged in consensual intercourse on a number of occasions. The Plaintiff understood that the Defendant was taking the birth control pill and that she did not wish to become pregnant.

Their relationship had been over for several weeks when the Plaintiff learned that the Defendant was 10 weeks pregnant. She later gave birth to a healthy child and a paternity test confirmed the plaintiff was the child’s father.

The Plaintiff’s original claim sought damages due to sexual consent obtained through deception and dishonesty. The court of Appeal wrote, “’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.” While he accepted the responsibilities of fatherhood, and had been making child support payments, he was suing “just for the non-pathological emotional harm of an unplanned parenthood.”

Trial and Court of Appeal

The Trial Judge explained that the Plaintiff could have pursued several causes of action arising from what happened that may have supported a claim for the emotional harm he described. The Trial Judge found “instead of employing those causes of action, PP has twisted and distorted the tort of fraudulent misrepresentation, normally an economic loss tort, into a novel emotional harm cause of action. In my opinion, it is plain and obvious that fraudulent misrepresentation is not the legal vehicle for a claim for the emotional harm arising from unplanned parenthood. I, therefore, strike out his Statement of Claim for fraudulent misrepresentation.”

The Trial Judge determined that the Plaintiff should not be allowed to pursue these other causes of action because there were no grounds to support his claim of emotional hardship, such as sexual battery. The Court of Appeal summarized the Trial Judge’s finding, concluding “In other words, the motion judge found that PP’s 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.”

If you are involved in a dispute over paternity or child support, your first step should be to understand your rights and obtain the best possible child support arrangement for your children. Arbesman Hamilton LLP and its predecessors have been helping clients in Toronto since 1953. Our lawyers provide clear, practical advice so that clients can make informed decisions about their parental rights. Contact us online or at 416-481-5604 to book a consultation.