A gay man and his straight, female friend can be in a “conjugal relationship” that is legally recognised by Canadian courts thanks to a groundbreaking new ruling.
The decision, which involves a gay refugee to Canada and a straight woman he met at university overseas, expands the legal definition of what a loving couple can look like.
The two close friends, identified as AP and AM, had unprotected sex on a trip and the woman became pregnant. When the baby was born they decided to commit to each other and raise their child as a family unit, in spite of their sexualities.
However, when the gay man tried to sponsor the woman and their child to join him in Canada, their case was blocked by immigration officials who said their bond didn’t meet the definition of a conjugal relationship.
Earlier this month the couple were granted an appeal, with federal court justice Janet M Fuhrer calling the previous decision closed-minded and biased against the mixed-orientation couple.
The couple don’t have to fit a ‘traditional marital model’, court rules.
Ordering a review of the case, the federal court said that the Immigration Appeal Division (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 judge stated that the IAD had committed an “egregious error” in presuming they were unable to meet the sexual component of the partnership.
“Couples are not required to fit precisely the traditional marital model to demonstrate that the relationship is ‘conjugal,'” her 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.”
The appeals division asked multiple questions about the pair’s sexual relationship, and the ruling suggests they appeared fixated on whether or not their families knew about their sex life, even though AM’s parents considered them to be a couple.
Fuhrer noted that the two did have difficulties with sex, but AP said their sexual interactions could “be solved with sex toys or applications,” feeling it was about whether “you (are) getting all the richness of feelings or … having sex with who you love.”
The couple’s lawyer, Athena Portokalidis, said it’s rare for the court to call a tribunal decision-maker “biased” outright.
“The fact that this case even exists speaks to the fact that there’s doubt [about these relationships]. It’s 2020 and society has become more accepting of different forms of relationships. It is time the law catches up,” she told CTV News.