the form of a visible and provable illness: see, e.g., Frame v.
Smith, at para. 46; Prinzo v. Baycrest Centre for Geriatric Care
(2002), 60 O.R. (3d) 474,  O.J. No. 2712 (C.A.), at para. 43.
 Citing further from the reasons of Wilson J. in Frame v.
Smith, at paras. 46-47, the motion judge held that it was plain
and obvious that the civil claim before him should not be
permitted to extend the tort of fraudulent misrepresentation
into the context of a family law conflict of this nature. This is
because it would not appear to be in the best interests of children to do so.
 Finally, the motion judge recognized the possibility that,
although it was not pleaded, PP’s pleadings could support a
cause of action for civil sexual assault (“sexual battery”). In his
view, this is the “conventional legal tool” for civil redress against
sexual misconduct. The motion judge noted that such a claim is
provable without any damages having been suffered beyond the
invasion of one’s bodily integrity.
 After reviewing the jurisprudence on fraud vitiating consent in the context of sexual battery, the motion judge determined that PP’s pleading might indeed disclose a claim for
sexual battery. However, he declined to grant PP leave to deliver
a fresh as amended statement of claim expressly pleading such a
claim. The decisive factor was that PP’s “novel” sexual battery
claim was, in the motion judge’s view, focused on the non-pathological emotional harm of an unplanned parenthood. In
other words, the motion judge found that PP’s sense of violation
arose not from the sexual touching to which he ostensibly consented, but from the spoiling of his later plans by the birth of an
 For the same reasons that a fraudulent misrepresentation
claim could not succeed — namely, that it was based on “the
non-pathological emotional harm of unplanned parenthood” — it
was plain and obvious to the motion judge that the claim did not
come within the ambit of the tort of sexual battery.
 In a subsequently released decision, the motion judge
declined to make any order as to costs: P. (P.) v. D. (D.), 
O.J. No. 562, 2016 ONSC 814, 263 A.C.W.S. (3d) 322 (S.C.J.). As
he explains in his reasons, this was because the issues were
novel and important, and neither party was wrong in seeking
access to justice. Further, the motion judge determined that
“awarding costs would likely increase the acrimony between the
parties and thus complicate the proceedings in the Family Court
and make this sad story worse for the child whose birth has
become a source of emotional grief” (para. 9).