Involuntary parenthood claims don’t pay

There is no right to sue for “involuntary parenthood.” That’s according to the Court of Appeal for Ontario in PP v DD, which upheld a lower court decision to toss out a father’s lawsuit against his former female sexual partner for making him a parent before he wanted to become one.

The decision helps prevent tort law from being used to control women by making them pay – literally – for the consequences of their reproductive choices.

I wrote about the lower court decision last year, arguing that it was the right call for women’s reproductive autonomy.

Let’s back up and recall the facts: PP, the male plaintiff (a doctor), and DD, the female defendant (who also worked in health care), had a brief sexual relationship in 2014. PP understood that DD took birth control pills, so they did not use condoms. DD became pregnant and informed PP, who suggested that she have an abortion. DD decided to have the baby, born in early 2015.

PP sued her in tort, for fraud, deceit, and fraudulent misrepresentation – all based on his assumption that DD lied about being on birth control (that allegation had to be taken as true for the purpose of determining whether PP’s lawsuit could proceed). Justice Paul Perell, who also considered whether PP had pleaded a proper claim for sexual battery, found that none of PP’s claims stood a chance of success and dismissed the lawsuit.

PP appealed.

In his reasons for judgment, Justice Paul Rouleau focused first on whether damages would be available for PP’s fraud-based claims. PP did not allege any real physical or psychological harm from becoming a parent. Instead, he sought damages for “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.”

Some courts in Canada and the UK have awarded damages to parents who sue third party health care providers (e.g. for a failed vasectomy). But the Court of Appeal found there are policy reasons not to award the kinds of damages that PP sought when one parent sues another. It is too hard to measure the loss, Justice Rouleau said, and besides – once a baby is born, the parents are supposed to share “equally the legal and moral responsibility of maintaining the child.”

Because family law has been trending “away from fault based claims,” it would not make sense to return fault to the equation by permitting involuntary parenthood lawsuits. Take child support, which Justice Rouleau noted “is the right of the child” with “a corresponding obligation” on parents “to financially support the child”:

The legislative scheme for child support is broad, and does not take blame into account in relation to the manner of conception. The statutory remedies available to ensure support for the child flow from the simple fact of being a parent as defined by statute.

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 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 child’s upbringing.

In rejecting the “involuntary parenthood” claim, the court borrowed from family law and rightly centred on the child’s best interests. As Patricia Joseph notes, a large damages payment from DD to PP would just diminish the money available to support the child.

The court also rejected PP’s battery claim, but for different reasons. This is the most feminist part of the decision (handed down by an all-male bench).

PP relied on the Supreme Court of Canada’s decision in R v Hutchinson to argue that DD’s alleged “fraud” about birth control vitiated, or cancelled out, the consent he gave to the sexual activity. The top court in that case upheld the sexual assault conviction of a man who had poked holes in the condoms he used with his female partner, who became pregnant and chose to have an abortion.

As discussed in my earlier post, the SCC majority in Hutchinson recognized that the physical risks of pregnancy for women could constitute the “deprivation” required to meet the test for fraud vitiating consent, because of the potential for “serious bodily harm” to result from pregnancy.

Even if DD had actively lied about being on birth control (which is never 100 per cent effective anyway, a fact one would hope most adult men would know – especially PP, who is a doctor), the Court of Appeal held that this was not the kind of lie that would turn consensual sex into non-consensual sex. Nor was it the kind of lie that would entitle PP to damages from DD for having a baby.

As Justice Rouleau wrote:

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.

We know from Hutchinson that consent is inextricably linked to autonomy, but here there was no loss of autonomy for PP. There was nothing that could have cancelled out PP’s consent to sex.

As a result, a woman who makes the reproductive choice to have a baby, with all its attendant physical and psychological risks, does not have to pay damages for making that choice.

The decision is refreshing for affirming a holistic and feminist view of consent that is not always present in Canadian case law (especially in the criminal justice context. See articles from Elizabeth Sheehy here and Gillian Hnatiw here on the recent sexual assault acquittal of a Halifax taxi driver, which is now under appeal).

There is so much real work to do to improve how the justice system treats consent. While this decision is positive in its approach to consent, let’s hope valuable court time will not be wasted on involuntary parenthood claims that ask women to pay for exercising their reproductive autonomy.