Be Careful Who You Sleep With – Child Support and “Involuntary” Fatherhood

Written by Colin A. Steffler.

Let’s say, hypothetically, that you, a male, meet a woman and begin an intimate relationship. You make it clear throughout that relationship that you are not ready to become a father and not interested in having children until some point far in the future (or, perhaps, not at all). She assures you that she is taking birth control pills and is also not interested in having kids right now, so you don’t bother using any other form of contraception. However, you later find out that she was not entirely honest about being on the pill, when she informs you that she is pregnant and intends to keep the baby. Will you still be obligated to pay child support, even though you were very clear that you did not want to have a child? Do you have any recourse against your romantic partner as a result of her dishonesty about her contraceptive use and intentions with respect to a possible pregnancy? Courts in various jurisdictions have considered addressed these questions, and the results for unwilling fathers looking to avoid their support obligations are consistently poor.

In Miller v Ufoegbune , for example, the parties were married in 1979 and divorced two years later, one month before their son, Darnell, was born. The divorce order did not address the issue of child support and the father did not pay anything for almost two decades. When the mother eventually brought a claim for child support, the father did not deny that he was Darnell’s biological father, but claimed that the mother had falsely informed him that she could not have children and was using birth control. When the mother became pregnant, the father urged her to put the child up for adoption. She refused and, according to the father, it was this disagreement that ultimately resulted in their separation and divorce. Justice Steinberg, of the Superior Court of Justice, rejected the father’s attempt to avoid his child support obligation stating:

The fact that the child was not wanted by him and that Darnell’s conception was a surprise to him is not a defence to this claim. When parties engage in sexual relations, they are deemed to do so on the understanding that, however unlikely and however unanticipated, a pregnancy may result. The fact that a subsequent birth may result should not detract from any responsibilities imposed by law on either parent.

Similarly, in PP v DD , the parties had a short, intimate relationship lasting only a couple months. At the outset of their sexual relationship, in May 2014, the father asked the mother if she was on the pill, and as she indicated that she was, he did not use a condom. About a month later, the parties again discussed their use of contraception, with the father indicating he would happily wear a condom if it would make the mother more comfortable. The mother said she preferred not to use one, and they continued having unprotected sex, with the father assuming the mother was on the pill. They ended their relationship in July, with the intention of remaining friends, but in August 2014, the mother informed the father that she was pregnant and intended to keep the baby. He suggested that she get an abortion, but she refused.

In March 2015, the mother gave birth to a healthy child. Shortly thereafter, the parties began negotiating temporary child support arrangements. Although the father claimed that he was willing to pay child support and wanted to maintain a relationship with the child, he initiated a civil lawsuit against the mother in July 2015, seeking over $4 million in damages. In his claim, the father asserted that his consent to sexual intercourse had been negated by the mother’s fraudulent misrepresentations with respect to her contraceptive use and that he had been deprived of the benefit of choice as to when and with whom he would conceive and raise a child. The father further asserted that birth of this child would hinder his income and career as a medical doctor, since he would have to devote time and financial resources to the child that would otherwise have been invested in his career or other personal aspirations. The mother was successful in having the father’s claim struck and the father appealed.

In considering the father’s appeal, Justice Rouleau, of the Ontario Court of Appeal, reviewed the outcomes of a number of similar cases in Ontario, Quebec, the United Kingdom, Australia, and the United States, all of which indicated that the birth of a healthy child generally will not give rise to damages and policy dictates that civil lawsuits cannot be used to circumvent statutory child support obligations. After reviewing this jurisprudence, the Court held that awarding damages to the father in this case “would be contrary to the spirit and purpose of Ontario’s statutory family law regime.” The Court went on to explain:

The child support obligation of a parent in Ontario is legislated in s. 31(1) of the Family Law Act, which clearly states that every parent has an obligation to provide support for his or her child to the extent that the parent is capable of doing so. 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 [father] 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.

After dismissing the father’s claim with respect to the mother’s alleged fraudulent misrepresentation, the Court went on to consider whether the mother’s dishonesty regarding her birth control use might give rise to a claim for sexual battery, on the basis that the deception had vitiated the father’s consent to sexual activity. In considering this possible claim, Justice Rouleau reviewed the Supreme Court of Canada’s decision in a criminal sexual assault case , wherein the accused had deliberately (and without his partner’s knowledge) punctured holes in a condom before using it. In that case, the Supreme Court held the complainant’s consent to sexual intercourse would not be vitiated by dishonesty about condom use unless there was a serious risk of harm resulting from the deception. In the majority’s view, increased risk of pregnancy resulting from the accused’s actions amounted to a risk of serious harm.

In the case before the Court of Appeal, there was, obviously, no such risk of pregnancy for the father, he was not exposed to any other serious risk of bodily harm, and he had willingly assumed the (admittedly small) risk of the mother becoming pregnant despite taking contraceptives. Accordingly, the Court dismissed the father’s appeal, with Justice Rouleau noting:

This is not to minimize the significance of fathering a child and the legal and moral responsibilities that ensue therefrom, nor to condone the alleged conduct of the [mother]. The issue is only whether the alleged misrepresentation is actionable and whether, if proven, it would constitute the tort of battery. In my view, it would not.

Shortly after the Court of Appeal’s decision in PP v DD, a similar case was heard by Justice O’Connell in the Ontario Court of Justice. In M.-A.M. v J.C.M. , the father maintained that he was “not legally obligated to pay child support because the mother had engaged in a ‘premeditated theft of the father’s DNA’ during ‘a hostile sexual act of DNA theft leading to the birth of the child.” The parties in this case had had a brief relationship and lived together for approximately 6 months in 2013 (although the father denied this). According to the father, the “strict terms” of their sexual relationship were that “no form of the [father’s] DNA ejaculate was to enter [the mother’s] reproductive system”. Despite these supposedly strict terms, the parties did not use any form of contraception, except the “withdrawal” method; however, the father contended that the mother had told him she was “medically infertile”.

Unsurprisingly, Justice O’Connell rejected the father’s arguments, stating, “There is no legal basis for the father’s attempt to create a new defence to child support. The father’s claim that the mother committed a ‘hostile act of DNA theft’ does not alleviate his obligation to pay child support.” The judge went on to note that the only “defence” to child support is set out in s. 31(2) of the Family Law Act, which indicates that a parent is not obligated to support a child who is 16 year of age or older and has voluntarily withdrawn from parental control. Justice O’Connell further noted that the father did not dispute paternity and had made no attempt to pursue criminal charges against the mother for sexual assault or the alleged “DNA theft”, but instead appeared to be trying to create a new tort of “hostile sexual act of DNA theft” which: (a) did not exist; (b) would be outside the jurisdiction of the Ontario Court of Justice; and (c) would run counter to the Court of Appeal’s decision in PP v DD. Justice O’Connell ultimately dismissed the father’s claims, granting the mother’s motion for summary judgment, and ordering the father to pay child support.

Take-Away Points

All of the above can be boiled down to a few simple points.

1. Sex – Possible Pregnancy – When you engage in sexual intercourse, you are deemed to understand and accept that pregnancy and the birth of a child may result.

2. Every Parent has a Support Obligation – If you fit the statutory description of a “parent”, you have an obligation to support your child. Pursuant to s. 7(1) of the Children’s Law Reform Act, “parent” includes “[t]he person whose sperm resulted in the conception of a child conceived through sexual intercourse”.

3. Fault is Irrelevant – It does not matter whether you wanted to become a father or not. It does not matter whether you thought the mother was taking the pill, or that she said she was sterile, or that she said she did not want a baby. In most instances, if you had sex, and a child was born as a result, you have a child support obligation.

4. Civil Liability is not a Loophole to Avoid Child Support – Lawsuits commenced by unwilling fathers against allegedly dishonest mothers, both in Canada and in various other jurisdictions, have universally failed. Courts will not allow civil claims to override statutory child support obligations.

5. Condoms are Cheaper than Child Support – When you have sex, you are potentially writing a very large cheque to your romantic partner. Are you willing to take that risk?

2000 CanLII 22448 (ONSC) [Miller].
Miller at para 4.
2017 ONCA 180 [PP].
PP at para 54.
PP at paras 62-63.
R v Hutchinson, 2014 SCC 19.
PP at para 86.
2017 ONCJ 144 (MAM).
MAM at para 6.
Unless that person is a sperm donor, and this is made clear in a written agreement – see subsections 7(4) and (5).

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