National Post (Latest Edition)

Gay man and straight wo­man can be con­ju­gal

- Tyler Daw­son tdaw­son@ postmedia. com Twit­ter. com/ tyler­rdaw­son Crime · Society · Discrimination · LGBT Rights · Immigration · Human Rights · LGBT · Federal Court

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.

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