It’s a tale as old as time. Man meets woman. Woman gets pregnant. Man feels trapped. Except this time, the man asks for money. “Money for what?” – you ask. Money to compensate him for the emotional trauma of the “unplanned pregnancy”.

In PP v DD, 2016 ONSC 258, Justice Perell described their courtship. They dated for about two months. The man (an ER doctor in his late thirties) felt that she was not right for him. So after about two months of dating, he breaks off the relationship. She then texts him a couple weeks later advising him that she is ten weeks pregnant. The man then sues her.

He states in his statement of claim that he was deceived. She told him that she was on the birth control and basically he did not sign up for this. He was waiting to meet the woman of his dreams and have babies with her, not this pretender. At paragraphs 25, Justice Perell excerpts the man’s claim.

  1. The representations by DD that: (i) she was taking birth control as prescribed and directed; (ii) she did not want to get pregnant; and, (iii) she did not want to have a baby were deliberate, willful, and conscious distortions of the truth. DD made those false statements with the knowledge that they are untrue. DD intended to deceive PP. DD intended that PP would rely and act upon the false statements. PP did so and, solely based upon the false statements, proceeded with sexual intercourse and intravaginal ejaculation. Consequently, DD became pregnantand has claimed that PP is the father of the child. DD brought about her pregnancy by deception. As a result, PP has suffered damages.
  2. PP consented to having sexual intercourse with DD. That consent, however, was expressly based on his understanding and belief that DD was taking the birth control pill as prescribed and directed and did not intend on getting pregnantor having a baby. PP would not have consented to sexual intercourse and intravaginal ejaculation had he known the true state of affairs. PP’s consent to sexual intercourse was procured by DD through her deception and dishonesty. Accordingly, that consent was vitiated.
  3. PP expressly enquired of DD as to whether she was “on the pill” because he had already made the clear and conscious choice not to father a child at that time. PP was just beginning his career as a physician; he was not at a stage of his life at which he thought he was “ready” to assume the responsibilities of being a father; 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. The deceptions by DD deprived PP of the benefit of that choice.
  4. The actions of PP based on the deceit and fraudulent representations by DD resulted in damage to PP, the particulars of which shall be provided in the course of this proceeding in accordance with the Rules of Civil Procedure.
  5. DD committed an independently actionable wrong through misconduct that represents a marked departure from ordinary standards of decent behaviour. Her conduct was sufficiently malicious, high-handed and highly reprehensible such that it offends the court’s sense of decency. Accordingly, PP seeks and is entitled to an award of punitive damages to achieve the objectives of punishment, deterrence, and denunciation.

Justice Perell struck out the statement of claim. He framed his analysis in the tort of sexual battery and the tort of fraudulent misrepresentation, stating that fraudulent misrepresentation was not designed to compensate for this kind of emotional trauma. At paragraphs 39 and 45, he explains:

[39] The argument of DD’s challenge to PP’s Statement of Claim brought the clarity of what PP’s action is really about. In the guise of a fraudulent misrepresentation cause of action, PP seeks compensation for the non-pathological emotional harm of unplanned fatherhood. PP is not against being a father, but his passionate argument is that by DD’s fraudulent misrepresentation, he has been denied the opportunity to be a father at the time of his and future beloved’s choosing and he suffered non-pathological emotional harm as a consequence.

[45]           Fraudulent misrepresentation is typically classified as an economic or pecuniary loss tort, for which compensatory damages are designed to restore the person to the financial position he or she was in before the fraudulent misrepresentation. Apart from having to pay child support, which subject to proof of paternity, he is no longer seeking to avoid, PP does not have any financial losses and none are particularized in his Statement of Claim. PP is not married to DD. He is not obliged to marry her. He is not a spouse under the Family Law Act, R.S.O. 1990, c. F.3, because he never cohabited with DD and he never established a relationship of any permanence with her. PP will not incur any financial losses from DD’s pregnancy and the birth of a healthy child, and he will experience no disruption of his career as a doctor. PP was not infected by any venereal disease and he does not plead that his emotional harm was pathological in nature.

Justice Perell’s analysis of the tort of sexual battery and the tort of fraudulent misrepresentation is excellent, as always. And he rightfully strikes out the statement of claim, stopping the ridiculous litigation in its tracks.

At the heart of his decision is the protection of a child from his/her idiotic parents. “The facts are salacious and ignobly pleaded, and I made the confidentiality order because I was concerned that the child that is at the heart of the history might someday read the decision, self-identify, and be traumatized.”

At the heart of this decision is the protection of future children from future bad parents. If every father could sue the mother of a child that got pregnant without his knowledge, then I suspect that there would be a lot of lawsuits of this nature. And sometimes there’s no place for the “courts in the bedrooms of the nation”.