several instances of sexual intercourse, a risk present even
where the woman is taking contraceptive pills.
[ 86] The alleged deception in this case was not with respect to
the nature of the act, but only as to the likely consequences flowing therefrom. The sexual contact in this case was consented to
and there were no physically injurious consequences. There was
therefore no violation of the appellant’s right to physical or
sexual autonomy that would give rise to a claim in battery. This
is not to minimize the significance of fathering a child and the
legal and moral responsibilities that ensue therefrom, nor to
condone the alleged conduct of the respondent. The issue is
only whether the alleged misrepresentation is actionable and
whether, if proven, it would constitute the tort of battery. In my
view, it would not.
[ 87] The respondent has cross-appealed on the issue of costs.
As set out earlier, the motion judge exercised his discretion not
to award costs on the basis that the issues were novel and
important and, in addition, that he considered that an award of
costs would further complicate the proceedings in the family
court. Motion judges have broad discretion in the award of costs
and their decisions are entitled to deference on appeal. I see no
basis on which to interfere with the motion judge’s exercise of
discretion in this case.
[ 88] In conclusion, therefore, I would dismiss both the appeal
and the cross-appeal.
[ 89] The respondent seeks costs of the appeal in the amount of
$18,385.74. In my view, the amount claimed is somewhat
high and substantially exceeds the costs incurred by the appellant. As a result, I would award the respondent’s costs fixed in
the amount of $8,000, inclusive of disbursements and applicable taxes.