A handful of clients have come into my office with statements such as: "she told me she was on the pill", "she told me she could not get pregnant", "I clearly told her I did not want children", and the classic "she told me that if she ever got pregnant, she would take care of the child on her own". The follow-up question is often "do I still have to pay child support?". The answer is incontestably, irrevocably, categorically: YES. In Canadian Family Law, the child will never be made to suffer financially because of the fault of one of his/her parents.
It is true that once a woman knows she is carrying a child, she has the choice of pursuing or terminating her pregnancy, regardless of the biological father's opinion or wishes. So it may seem unfair that the father has no choice in the matter, regardless of the financial and other important consequences that flow from parenthood. But our Canadian courts have consistently found that child support obligations will be imposed on the father even if the mother clearly behaved deceitfully.
A father recently brought his complaints in this regard outside of the family courts (PP v. DD, 2017 ONCA 180) and into the regular civil courts trying to get financial relief against his used-to-be sexual partner (I call her so since the number of dates and/or sexual interactions could be counted on two hands - if not one). His claims were simple: he pled that he should receive damages from the mother for fraud, deceit, and fraudulent misrepresentation as she had lied to him about her being on the pill while they were engaged in a sexual relationship. He claimed that his newfound paternity had caused him financial, emotional and professional prejudices. He also claimed that she had taken away his right to choose when and with whom he would become a parent. The judge dismissed his claims.
Parents and teachers tell their teens that abstinence is the only guaranteed method of preventing a pregnancy. The judge in that case agreed. Although he did not put it in those words, the judge stated that while the mother had clearly been deceitful, the father had agreed to have sex with her and whether there was a 1% or 99% chance of pregnancy, there was still a risk, a risk that the father had willingly taken. The father's consent to the sexual intercourse could not therefore be vitiated; he knowingly agreed to have sex knowing that sex could lead to pregnancy.
While this may seem very unfair to this father, I invite you to think about what would happen if a Canadian judge were to find that no financial consequences should flow from the birth of a child unless the child was conceived with both parents' consent?
Click here if you would like to read the whole decision from the Ontario Court of Appeal.
Gabrielle Beaulieu, ALT Divorce