Judge Rules That Couple with Different Sexual Orientations Can Form Conjugal Relationship

Federal Court Ruling Marks Dramatic Development in Immigration Law

The Federal Court of Canada recently ruled in a landmark case that a gay man and straight woman raising a child together can form a conjugal relationship. Prior to the ruling, the parents had submitted a sponsorship application but were denied due to their unconventional relationship. 

While the circumstances surrounding their situation are unusual, the Federal Court found that sexual intimacy, or the lack thereof, should not necessarily be a determining factor in whether a “couple” is in a conjugal relationship. 

The Facts Surrounding This Landmark Case 

The following are the key details of this landmark case: 

A man, who was only identified by his initials “A.P.,” came to Canada seeking asylum due to claims that he was subject to persecution in his country of origin because of his sexual orientation. He obtained protected person status and, eventually, permanent residency in Canada.  

While traveling abroad, A.P. later had sexual relations with a heterosexual female friend identified as “A.M.,” which resulted in a pregnancy. A.M. was not a resident of Canada. Even though A.P identified as gay, both he and A.P decided to try to raise the child together as a couple. 

A.P. applied to sponsor both his child and A.M. as his conjugal partner. However, an immigration officer denied the application. 

A.P. appealed to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB). However, the IAD upheld the decision, ruling that A.P. could not sponsor A.M as his conjugal partner.  

In its decision, the IAD stated that “a homosexual man and a heterosexual woman are [not] able to meet the sexual component of conjugal partnership,” and that “the sexual and personal behaviour of the couple was inconsistent with a conjugal partnership.” 

A.P. appealed the IAD decision to the Federal Court of Canada, which determined that the immigration officer’s decision to reject the sponsorship application was unreasonable. Federal Court Justice Fuhrer then remanded the decision back to another officer for redetermination, stating that the IAD had erred in its decision that A.P. and A.M. were not considered a conjugal unit.  

Justice Fuhrer noted that, despite the differing orientation of A.P. and A.M., the couple were still able to enjoy sexual intimacy. Justice Fuhrer also cited the landmark Supreme Court of Canada case M. v. H. (1999) which provided a framework for the existence of a conjugal union, and found that sexual intimacy does not provide the basis for a conjugal relationship. Justice Fuhrer concluded that a ‘mixed-orientation couple’ such as A.P. and A.M. could still form a conjugal union in the absence of sexual intimacy. 

A.P. and A.M. must now await a secondary decision from the new officer overseeing their file.