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Today's decision by the Supreme Court of Canada in R. v. Hutchinson considered whether Mr. Hutchinson was guilty of aggravated sexual assault because he poked holes in condoms in order to get his girlfriend pregnant. The majority found Mr. Hutchinson's actions constituted fraud (under section 265.(3)(c) of the Criminal Code), because he acted dishonestly and created a risk of serious bodily harm to his girlfriend. In this case, the risk of bodily harm was the risk of pregnancy. As such, his girlfriend's consent to sex was vitiated, and he was guilty of the criminal offence.

We here at the family law connection would like to note that apart from the criminal ramifications to this act, there are also serious family law consequences.

Custody and Access

If the other parent of your child is convicted of sexually assaulting you, there is a good chance this will be a significant consideration when deciding if he or she will have custody rights, and his or her access to the child. Custody and access is governed by the best interests of the child. Under the Children's Law Reform Act and Divorce Act, the court is also required to consider whether a parent has committed violence or abuse against his or her spouse when determining that person’s ability to act as a parent.

Although this is a relatively new and untested crime, there is no reason to believe that family law courts would view this type of sexual assault differently when considering access and custody.

Child Support

It is the right of a child to receive child support. This is the case even if they do not have contact with the payor parent. In some cases, child support may be terminated where a mature child (over the age of 16) unilaterally terminates their relationship with the payor parent, without a reasonable cause.

If your child does not have a relationship with your co-parent, because for example, he or she is in prison for sexually assaulting you, that parent will still be required to pay child support. Except, under the rare circumstances discussed above, this obligation will be regardless of whether the parent currently has a relationship with the child.

Similarly, even if a person involuntarily conceives, he or she will have to pay child support once the child is born, because child support is the right of the child, not the parent. If you are a child's parent because:

  • you became pregnant as a result of a sexual assault, including assaults such as the one in R. v. Hutchinson;
  • or you had sex under the belief that birth control was being used; or
  • you had sex under the impression that either one of you was sterile,

if the child is not adopted into a new family, and if you do not care for the child at least 40% of the time, you will be required to pay child support, regardless of how the child was conceived.

Author(s)

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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