Globe and Mail

Ex-boyfriend ordered to pay prenatal costs

Decision raises questions about rules of dating

Friday, February 12, 1999
KIRK MAKIN
Justice Reporter

Toronto -- A Toronto woman who became pregnant after meeting a man through a dating service won an unprecedented victory yesterday by obtaining spousal support payments to cover her prenatal expenses.

Judge Hugh O'Connell of the Ontario Court's General Division ruled that a dating relationship between Andrea Danovitch and Mark Tatoff was of sufficient length to imply a contract resulting in spousal responsibilities.

He awarded Ms. Danovitch $2,355 to cover expenses, including maternity clothes, midwifery fees and literature on pregnancy. Judge O'Connell also awarded her $330 for extra expenses like taxis, take-out meals and laundry services during her pregnancy.

Thomas Richards, Ms. Danovitch's lawyer, said she is due to deliver her baby next month.

Family-law experts predicted the decision will have a resounding effect on footloose boyfriends and pregnant women who find their partner's ardour suddenly cools.

"The average person who dates, gets together on weekends and then gets pregnant would not expect to be liable for spousal support," lawyer Grant Gold said. "This couple was dating and happened to sleep together on their weekends. Lots of people have relationships like that. It is the nineties."
"I think the decision is a correct one and it is unique. It is remarkable."

Mr. Gold, a Toronto family lawyer, said men are now likely to become more careful about conveying the impression that they are co-habiting, and about showing too much enthusiasm for an unexpected pregnancy.

"You risk the possibility that a court may say: 'It looks like a duck. It smells like a duck -- you're married,' " he said.

The breakdown of Judge O'Connell's award included $900 for maternity clothes, $200 for shoes and boots, $60 for literature on pregnancy, $100 for obstetrician fees, $120 for a prenatal course, $750 for midwifery fees and $225 for moving expenses.

Esther Lenkinsky, another veteran family lawyer, praised the decision for carrying the law forward from a "quasi-Victorian notion of family."

Dating has traditionally meant going out for dinner, catching a movie and going home, Ms. Lenkinsky said. "It hasn't meant working out financial positions and having a baby with another person. The law needs to recognize modern realities and modern living arrangements.

"To me, it is pushing the edge of the law the same way same-sex spouses have recently," she said. "I think Judge O'Connell is to be commended for his creativity."

Ms. Danovitch and Mr. Tatoff -- both childless professionals in their late thirties -- met in November, 1997, through an introduction service known as the Jewish Singles Registry.

The couple maintained separate residences during their nine-month relationship, but often stayed at one another's homes on weekends. Both were pleased when Ms. Danovitch learned of her pregnancy, but their relationship ran aground two weeks later as they were preparing to move in together.

Mr. Tatoff has always maintained he would voluntarily pay child support after the child is born.

"Both are pretty intense people, and I think it became an issue beyond the money," Mr. Richards said yesterday. "He ended up paying more in legal costs than what I was asking for.

"What is at issue here is men saying, 'Hey, give me a live child or you don't get paid.' My client said: 'Wait a minute. This is both of us involved here.' There are women all over the place who are pregnant and not getting support, and generally the man stopped the relationship as soon as he heard. I run into that a lot."

Mr. Gold said that while the decision implicitly recognizes a fetus as being a child, fetal rights played little role in Judge O'Connell's reasoning and appear to enter into it almost incidentally.

"He is saying that as soon as you are conceived, you are a child for the purposes of support," Mr. Gold said.

"Judges are very interested in protecting the best interests of the child. It is in a child's interest that his or her mother have things like clothes and a crib for him or her to sleep after being born. I think you are seeing Judge O'Connell hard at work here to get the right result."

Mr. Richards said he was astounded while researching his legal arguments to find not a single previous case in which spousal support was awarded to a woman who had not yet given birth.

"I'm sure a lot of pregnant women have asked their lawyers if they could get benefits, and the answer was no," he said. "This is the first case where a fetus has been treated as a child."

Mr. Richards said he will launch a new support application after the baby is born.

Mr. Tatoff's lawyer -- Michael N. Freeman -- said that his client has not decided whether he will appeal the decision.

WHAT THE JUDGE SAID

"At issue in this appeal is whether or not the parties lived under the same roof. The parties spent weekends together, while going back to their separate residences during the week to work.

"There is merit in the argument made that this was not a mere temporary relationship. The respondent gave the applicant every reason to believe she was in a permanent relationship with him. . . I am persuaded by the applicant's argument that the relationship between the parties was a marriage-like relationship and that the appellant meets the definition of spouse under the Family Law Act.

"The applicant argues that she is in need of support with respect to the costs of prenatal care for their baby. . . . In light of this, and the societal need for both parents to share in the prenatal costs of a child, the applicant is entitled to half of her prenatal costs.

"The parties agreed that the respondent, as father of the baby, would share in the responsibility, both financial and otherwise, of bringing this baby into the world. It seems reasonable to imply that these costs would be shared equally by the parties."

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