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Digest: P.P. v. D.D.


[2017] O.J. No. 1030

Ontario Court of Appeal
P.S. Rouleau, C.W. Hourigan and G. Huscroft JJ.A.


March 2, 2017.
(89 paras.)


   Family law — Parents and children — Children born outside marriage — Practice and procedure — Pleadings — Appeal by plaintiff from order striking statement of claim dismissed — Plaintiff had brief sexual relationship with defendant that resulted in defendant's pregnancy — Plaintiff claimed defendant fraudulently misrepresented use of birth control pills — Motion judge did not err in striking claim without leave to amend — No damages were recoverable for involuntary parenthood arising from misrepresentation as matter of legal and family law policy — Misrepresentation regarding use of contraceptives did not vitiate plaintiff's consent in manner that gave rise to sexual battery claim — Plaintiff's consent was fully informed and did not expose him to physical harm.

   Tort law — Trespass — To person — Battery — Sexual assault — Practice and procedure — Pleadings — Appeal by plaintiff from order striking statement of claim dismissed — Plaintiff had brief sexual relationship with defendant that resulted in defendant's pregnancy — Plaintiff claimed defendant fraudulently misrepresented use of birth control pills — Motion judge did not err in striking claim without leave to amend — No damages were recoverable for involuntary parenthood arising from misrepresentation as matter of legal and family law policy — Misrepresentation regarding use of contraceptives did not vitiate plaintiff's consent in manner that gave rise to sexual battery claim — Plaintiff's consent was fully informed and did not expose him to physical harm.

   Tort law — Fraud and misrepresentation — Pleadings — Pleading fraud and fraudulent misrepresentation — Sufficiency — Striking out statement of claim for absence of reasonable cause of action — Appeal by plaintiff from order striking statement of claim dismissed — Plaintiff had brief sexual relationship with defendant that resulted in defendant's pregnancy — Plaintiff claimed defendant fraudulently misrepresented use of birth control pills — Motion judge did not err in striking claim without leave to amend — No damages were recoverable for involuntary parenthood arising from misrepresentation as matter of legal and family law policy — Misrepresentation regarding use of contraceptives did not vitiate plaintiff's consent in manner that gave rise to sexual battery claim — Plaintiff's consent was fully informed and did not expose him to physical harm.

   Appeal by the plaintiff, PP, from an order striking his statement of claim without leave to amend. The plaintiff and the defendant, DD, had a two-month relationship that involved several instances of consensual sexual intercourse. Based on their conversations, the plaintiff believed the defendant took birth control pills. Several weeks after the end of their relationship, the defendant advised the plaintiff that she was pregnant. Paternity testing confirmed that the plaintiff was the father. The plaintiff commenced a civil action against the defendant seeking damages for fraud, deceit, and fraudulent misrepresentation. The plaintiff alleged the defendant's deception regarding birth control vitiated his consent to intercourse and deprived him of the benefit of choosing his partner and time for assuming the responsibility of parenthood. The defendant applied to strike the plaintiff's statement of claim. The motion judge determined that fraudulent misrepresentation was an economic tort that should not be extended to family law conflicts. A lack of consent was not a constituent element of fraudulent misrepresentation. It was plain and obvious that a claim for damages arising from non-pathological emotional harm related to an unplanned parenthood could not succeed. The harm claimed did not rise to the level of compensable damage for personal injury, and could not sustain a claim for sexual battery. The statement of claim was struck without leave to amend. The plaintiff appealed.

   HELD: Appeal dismissed. No damages by the plaintiff were recoverable for involuntary parenthood. As a matter of legal and family law policy, damages of the nature sought by the plaintiff ought not to be recoverable by way of a fraudulent misrepresentation action. To allow recovery of damages for an unwanted birth would run counter to the trend away from fault-based claims in the family law context, and the principle that parents were equally responsible for maintaining a child. In the absence of recoverable damages, a claim of negligent or fraudulent misrepresentation could not succeed. The alleged fraudulent misrepresentation related to the use of contraceptives did not vitiate the plaintiff's consent to sexual touching for the purpose of advancing a claim of battery. The plaintiff's consent to sexual activity was meaningful, voluntary and genuine. The consent was fully informed and did not result in activity that exposed the plaintiff to risk of serious bodily harm. Any deception did not flow from the nature of the act, and there was thus no actionable violation of the plaintiff's physical or sexual autonomy.