National Post (Latest Edition)
Gay man and straight woman can be conjugal
A gay man and a straight woman can be in a “conjugal relationship,” says a ruling from the Federal Court of Canada.
The couple, whose relationship was the subject of an immigration hearing, involves a gay man, identified only as AP and a female friend, AM. The two had been close during university and reconnected.
They met up abroad; AM has been denied refugee status in Canada. AP obtained protection, based on his sexual orientation, but could not return to the country where AM still lived. While the two were abroad, “there was a shift in their relationship and they had unprotected sex after a ‘ night on the town,’ ” says the federal court ruling, released in mid-september.
AM became pregnant. There is now a child, identified as KP.
“AP and AM decided to commit to each other and their child, and to raise the child together as a family unit,” the ruling says.
The two considered marrying in a third country, but the ruling says they decided not to. Instead, AP opted to sponsor AM and KP to come to Canada. Even though they communicate regularly by Skype, and AP provided financial assistance, an immigration officer decided there wasn’t enough dependence to establish that AM was a “conjugal partner.”
They appealed: The appeal division also found that AM was not AP’S conjugal partner, using evidence about their sex lives, concerns about why AP had not disclosed his sexual orientation earlier or his HIV- positive status.
The Federal Court disagreed, ordering a review of the case: “The transcript demonstrate the IAD was not open to the possibility of a loving, mixed- orientation relationship centred on the concept of a joint family unit meeting the statutory criteria, regardless of the degree of sexual intimacy.”
The ruling, written by Justice Janet M. Fuhrer, says “the Immigration Appeal Division’s “most egregious error was ( the) finding that ‘... a homosexual man and a heterosexual woman are (not) able to meet the sexual component of conjugal partnership.
“Couples are not required to fit precisely the traditional marital model to demonstrate that the relationship is ‘conjugal,’” the ruling says.