When an unwanted child results out of casual sex, can one party sue the other? Photo: iStock
Oh what a tangled web we weave.
When an unwanted child results out of a casual sexual relationship in which deceit may have played a part, can one party sue the other?
Not according to a recent Ontario Superior Court of Justice decision.
In the case PP. v. DD, a physician tried to sue the mother of his child for fraudulent misrepresentation for over $4 million, which the judge found to be rather a “disguised claim for sexual battery.”
PP, the plaintiff and DD, the defendant began a casual sexual relationship after having been set up by a friend. In PP’s statement of claim he states that he asked DD whether she was “on the pill” and she responded affirmatively.
After several dates, most of which included consensual sexual activity, PP and DD decided to break off their sexual relationship and stay friends. Shortly after the break-up, DD texted PP that she was pregnant. Shocked by the news, PP didn’t react well and even went so far as to ask her to have an abortion, which DD refused to have.
After PP got the shocking news, he decided to sue DD for fraudulent misrepresentation, claiming she deceived him into having recreational intercourse out of which resulted a child.
At the heart of the case is PP’s “non-pathological emotional harm of unplanned parenthood.” The harm resulted because PP claims he wasn’t given the choice of falling in love with a woman and deciding with his wife when the time would be right to have a child, because of DD’s deceit about being on the pill.
In his analysis, Judge Paul Perell looked at both the tort of fraudulent misrepresentation and the tort of sexual battery.
When it came to fraudulent misrepresentation, the judge found that in order for fraud to negate consent to sexual intercourse, there should be a significant risk of bodily harm, which is not present in this case, as PP is claiming emotional harm.
In the sexual battery analysis, Perell found little basis for it, noting that not all lies “of seduction” negate consent to sexual intercourse. Further he noted that PP’s emotional harm claim is not due to the sexual activity itself, but the results of the sexual activity, which was a child.
Perell’s decision centered on the best interests of the child: neither claim should spread to family law conflicts, because it has the potential to be used maliciously and negatively affect the relationship between parent and child.
To drive his point home, Perell concluded the case by telling the parties: “given the novelty of the matter and so as to not complicate the proceedings in the Family Court and to not make this sad story worse for the child whose birth has become a source of emotional grief, there should be no order as to costs.”