National Post (Latest Edition)

Gay man and straight woman can be conjugal

- Tyler Dawson tdawson@ postmedia. com Twitter. com/ tylerrdaws­on

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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