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January 22, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

The snark of the writer aside, this article deals with an important subject — conception by fraud (Toronto Star, 1/16/16).

It seems a man, identified only as PP, had a brief sexual relationship with a woman, DD. She assured him she was “on the pill,” he believed her and so they had sex without his using a condom. Soon, she was pregnant, a fact she announced to him via a text message.

So he sued her in civil court seeking compensatory and punitive damages, not for the child support he’s been paying, but for the emotional turmoil he’s had to endure.

[Ontario Superior Court Justice Paul]Perell wrote that PP was not seeking to avoid child support obligations, as he is already making payments.

“To use the language of the statement of claim, PP was emotionally harmed because he was deprived of the choice of falling in love, marrying, enjoying married life and, when he and his wife thought ‘the time was right,’ having a baby,” the judge wrote in his 18-page ruling…

“PP believed that DD was being truthful when she stated that she was ‘on the pill’ and believed that she truthfully implied that she did not want the act of sexual intercourse with PP to lead to conception,” reads part of the statement of claim quoted in Perell’s judgment…

The father-to-be alleged that he had been misled into believing that DD was on birth control and taking it as prescribed, or, as his statement of claim says in thick legalese:

“DD committed an independently actionable wrong through misconduct that represents a marked departure from ordinary standards of decent behaviour. Her conduct was sufficiently malicious, high-handed and highly reprehensible such that it offends the court’s sense of decency.”

And so it would seem to be. But however reprehensible DD’s behavior may have been, PP’s lawsuit was dismissed by Justice Perell because the law in Ontario affords him no remedy for her wrongdoing. Put simply, lying to a man about using birth control in order to become pregnant and receive his child support for the ensuing 18 + years violates no law, civil or criminal, statutory or common.

Ontario of course is not alone in ignoring what is surely one of the most grievous non-violent injuries a woman can do to a man. I know of no jurisdiction that provides any sort of legal redress for a man who relied on a woman’s explicit claim to be using birth control when she wasn’t and conceived a child as a result.

That raises one interesting issue about the PP/DD case.

Superior Court Justice Paul Perell threw out PP’s statement of claim last week, without permitting him the opportunity to amend it, finding there was no legal basis for his lawsuit.

“The case is certainly precedent-setting because no one has ever tried to do this before,” said DD’s lawyer, Morris Cooper, who characterized PP’s argument as “really a claim for wrongful pregnancy and birth.”

No, actually, it’s a case of fraud, or should have been. In layman’s terms, fraud consists of a statement, known to be false when made on which another person relies to their “detriment,” i.e. their legal position changed for the worse. Clearly, when a woman says she’s using a reliable form of birth control, but isn’t, and her male partner relies on her statement and doesn’t use a condom, and she becomes pregnant by him, all the elements of fraud are met.

And of course civil actions for fraud are among the oldest and best recognized in all of British and American common law.

The simple truth is that conception by fraud is an exception to one of our oldest and best established legal doctrines. Why do our laws make an exception for this particular type of fraud? It’s a good question to which I don’t have an answer. But generally speaking, our laws tend to resolve all issues regarding children and parents in the mother’s favor. That’s a holdover from centuries in which mothers were considered in most cultures to be the default parent, with Dad playing second fiddle in parenting matters.

But supposedly things are changing and we’re encouraging women to do more of the earning and men to do more of the childcare than was true in ages past. Now, much of that has proven to be little but hortatory. As much as academics, office holders, the news media and pop culture urge men and women to abandon their traditional roles, the response had so far been underwhelming. Men still work and earn far more than do women and women stay home with the kids far more than do men. And when asked, both men and women say they’d prefer to spend still more time on their traditional duties than they do. That’s hardly a ringing endorsement for change.

But the aforementioned elites who usually play a huge role in establishing cultural norms are notably missing in action when it comes to the issue of women’s control of all things related to children. When it comes to kids, all of a sudden, traditional roles are perfectly fine. Fathers can’t get custody of their kids? Fine. They can’t enforce their visitation orders? Fine. Alimony laws that impact almost exclusively men? Fine. Draconian child support laws that punish almost exclusively men? Fine. Adoption of children without Dad’s consent? Fine. CPS agencies refuse to notify Dad when Mom’s found unfit to care for his kids? Fine. Paternity fraud? Fine. Male victims of statutory rape forced to pay child support? Fine. Etc., etc.

I could go on almost indefinitely, but the point should be clear; whatever we may say about wanting to change gender roles, when it comes to children and mothers’ hegemony over parental rights, we do exactly the opposite. The case of PP vs. DD is yet another example. The law provides him no recourse for her wrongful behavior.

And it’s not as if that behavior is so unusual that the law can’t be expected to account for it. Indeed, when asked, hefty percentages of women readily admit that they either have lied about using birth control or would if they felt they needed to. In the U.S. one study found that 33% of community college women surveyed said they’d already done so while in the U.K. 42% of women surveyed said they’d lie about using contraception if they wanted to conceive a child on the sly.

The fight for fathers’ rights is, in the final analysis, a fight against those age-old gender norms. That fight is made all the harder by those who pretend to oppose traditional gender roles but who in fact do nothing of the kind. That pretense by organizations like NOW and the American Association of University Women, that claim to promote gender equality, strongly suggests instead only an agenda in favor of ever greater power for women, even in areas in which they have more than their share already. But that stance redounds to the detriment of the very causes those organizations support, like greater economic independence for women. As former NOW president Karen DeCrow said in the early 1980s, women will never gain power in the workplace until they cede power in the nursery.

Among many other things, that cession of power would include the loss of the legal ability to lie about using birth control in order to force a man into fatherhood. But, none of those feminist organizations seems to realize that, in order for women to gain financial independence, men need to gain control over their fertility. Their knee-jerk opposition to anything that benefits fathers is cutting off their nose to spite their face. Meanwhile fathers continue to suffer drastically inferior parental rights.

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