Federal court recognizes conjugal relationships
A gay man and a straight woman can be in a “conjugal relationship,” says a ruling from the Federal Court of Canada.
The tale, detailed in a ruling released in mid-September, 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,’” the ruling says.
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 (Immigration Appeal Division) 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.
“I find the fact of their different sexual orientations does not foreclose the possibility of AP and AM establishing that they are in a committed relationship of some permanence,” it said.
The appeals division, the ruling suggests, asked questions about the sexual relationship between AP and AM, and appeared fixated on whether or not their families knew about their sex life, even while AM’s parents considered them to be a couple.
They had difficulties with sex, Fuhrer notes, but AP had told the appeal court that despite that, their sexual interactions could “be solved with sex toys or applications,” Fuhrer wrote, and that AP said it was about whether “you (are) getting all the richness of feelings or … having sex with who you love.”
“Sexual relations are but one aspect — and not even the predominant consideration — in assessing the existence of a conjugal relationship,” Fuhrer wrote.