Wrongful birth claim by father against mother

PP v DD [2017] ONCA 180 is a recent decision of the Court of Appeal for Ontario. PP brought a civil action for fraud, deceit, and fraudulent misrepresentation against DD, claiming damages arising from the alleged deception of DD as to her use of contraception which deprived him of the benefit of choosing when and with whom he would assume the responsibility of fatherhood. At [18]:

PP’s statement of claim asserts that, on the basis of DD’s knowingly false representations with respect to her use of birth control and her implied intention not to conceive or deliver a child, he engaged in sexual intercourse that resulted in the birth of a child. He alleges that his consent was vitiated, having been induced by DD’s misrepresentations that led him to believe she was taking the birth control pill as prescribed and directed. As the child’s father, PP claims he has suffered damages. PP claims he has been deprived of the benefit of choice with respect to when, and with whom, he would conceive a child and raise a family.

The appeal followed a first instance order that PP’s statement of claim be struck out. The appeal was refused on a number of grounds including at [63]:

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.

The decision can be compared with Magill v Magill [2006] HCA 51. See also the ‘birth control fraud’ discussion by S Sheldon in Sperm bandits, birth control fraud and the battle of the sexes (2001) 21 Legal Studies 460.