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Damages - Involuntary Parenthood. PP v DD
In PP v DD (Ont CA, 2017) the Court of Appeal denied damages for involuntary parenthood on public policy grounds:[57] To allow the appellant to recover damages as against the respondent for the unwanted birth in the circumstances of this case would, in my view, run against the clear trend in the law moving away from fault based claims in the family law context.
[58] Since the 1970s, Canadian jurisdictions have moved away from a fault based divorce and child support regime. The 1976 Law Reform Commission of Canada’s Report on Family Law (Ottawa: Information Canada, 1976) put it as follows, at p. 18:[There should be] a process that offers no legal confirmation of a spouse’s contention that he was right and she was wrong, that she is innocent and he is guilty, that one is good and the other is bad. No legal results should be allowed to follow from such claims or accusations—not dissolution, not financial advantage, not a privileged position vis-à-vis the children. [59] In Frame v. Smith, at para. 9, La Forest J. similarly emphasized the “undesirability of provoking suits within the family circle.” As he explained, such claims brought by one parent against another should not often be allowed since they are in most cases detrimental to the parties involved—especially to the welfare of the child—and will invite a flood of cases. See also Louie v. Lastman (2001), 2001 CanLII 28066 (ON SC), 54 O.R. (3d) 301 (S.C.J.), at para. 31, affirmed (2002), 61 O.R. (3d) 459 (C.A.), and Saul v. Himel (1994), 9 R.F.L. (4th) 419 (Ont. Gen. Div.), at para. 20, affirmed (1996), 1996 CanLII 10207 (ON CA), 22 R.F.L. (4th) 226 (Ont. C.A.).
[60] Further, La Forest J. held in Frame that clear legislative action with respect to child custody and access rights was determinative in that case and precluded any possible judicial initiative in that area through the development of tort law. It was obvious to him that “the legislature intended to devise a comprehensive scheme” that precluded the availability of civil actions in such family disputes as the one before him: see Frame, at paras. 11-12.
[61] When a couple’s dispute involves costs related to their child, the imposition of civil liability raises similar concerns. It is well established that child support is the right of the child: see, e.g., D.B.S v. S.R.G., 2006 SCC 37 (CanLII), [2006] 2 S.C.R. 231, at para. 38. There is a corresponding obligation “placed equally upon both parents” to financially support the child: Paras v. Paras, 1970 CanLII 370 (ON CA), [1971] 1 O.R. 130 (C.A.). The Supreme Court of Canada has confirmed that:the obligation of both parents to support the child arises at birth. In that sense, the entitlement to child support is “automatic” and both parents must put their child’s interests ahead of their own in negotiating and litigating child support (Kerr v. Baranow, 2011 SCC 10 (CanLII), [2011] 1 S.C.R. 269, at para. 208). [62] 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.[4] The statutory remedies available to ensure support for the child flow from the simple fact of being a parent as defined by statute.
[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.
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