Children Born Without Disabilities
The early courts of the 1970’s outright rejected wrongful pregnancy claims to recover the ordinary cost of raising a healthy child, even though the unwanted pregnancy was a result of medical negligence. In Colp v Ringrose, Justice Lieberman said that it was contrary to public policy to award damages for a healthy child.13 In Doiron v Orr, Justice Garrett said it was “simply grotesque” that the plaintiff was seeking to recover costs for raising a healthy child.14 In Cryderman v Ringrose, while awarding general damages for having to undergo an abortion following failed sterilization, the Court expressed its position on claims for the cost of raising a healthy child by calling them “ridiculous.”15 In Cataford v Moreau, Justice Deschênes stated that parents should not be able to “cash in on their healthy child” because the “moral and financial advantages” of the child would exceed the cost of raising the child.16 Since then, the law has evolved, albeit inconsistently.
The three major approaches governing the recovery of the cost of raising a healthy child in Canada are the Limited Recovery Approach, the Loss of Autonomy Approach and the Full Recovery Approach.17-18 However, there is no single clear position in Canada.
Limited Recovery Approach
Through the Limited Recovery Approach, damages are limited to those directly associated with pregnancy, childbirth and accommodation for the newborn child, such as damages for pain and suffering, loss of income and medical expenses during the pregnancy.19 No damages are awarded for the cost of raising the healthy child to the age of majority. The courts have frequently held the view that loss may exist in becoming unexpectedly pregnant, but the birth of a healthy child in itself or having to raise a healthy child, cannot constitute a loss.
In Kealey v Berezowski, the plaintiff mother gave birth to a healthy baby following a failed tubal ligation. The Court only allowed general damages associated with the pregnancy and the need for re-sterilization after failed sterilization, along with recovery for loss of income.20 The plaintiffs were not entitled to the cost of raising the child because of the Court’s view that the birth of a healthy child could not be a loss or injury in itself. Justice Lax stated that the “benefits which a child brings are regarded as so essentially worthwhile that we tend to regard those who are childless by choice as unusual and we extend our comfort to those who long for a child but are unable to have one” and that “the love, companionship, affection and joy which a child brings is thought to so outweigh the burdens.”21 Therefore, there was no compensable loss suffered.
