The Mixed-Orientation Couple: a dramatic development in Canadian immigration law
Immigration law both shapes and reflects the society that produces it. A recent and pioneering case, A.P. v. Canada (Citizenship and Immigration), 2020 FC 906 (CanLII) makes this adage clear. In it, we see the dialogic, interpretative, and pragmatic nature of Canadian policy and law.
The Federal Court of Canada recently confronted a case involving a rather unusual set of circumstances, where a gay man and a straight woman who shared a child were denied conjugal sponsorship. The facts are as follows:
A man known to us only by his initials, A.P., came to Canada several years ago. A.P. claimed that he was subject to persecution in his unnamed country of origin due to being gay. A.P’s claim was successful, and he obtained protected person status and permanent residency in Canada. Some time later, A.P. met up, in a third country, with a heterosexual female friend from university named A.M. After what the court describes as a ‘night on the town’, A.P. and A.M. had intercourse and a child resulted from this encounter.
A.P. and A.M. decided to try to parent the child together as a couple, even though A.M. continued to identify as gay, not bisexual. A.M. could not return to his home country, and A.M. and A.P’s efforts to relocate to or marry in a third country failed. Consequently, A.P. sought to sponsor the child, and A.M. as A.P.’s conjugal partner, through the family class of Canadian immigration.
A Canadian immigration officer denied A.P’s application. A.P. then appealed to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB), a specialized Canadian administrative tribunal that handles such matters. The IAD upheld the officer’s determination that A.M. was not A.P.’s conjugal partner, meaning that A.P. could not sponsor her as such. Among other factors, the IAD cited, in its decision, its conclusion that “a homosexual man and a heterosexual woman are [not] able to meet the sexual component of conjugal partnership,” and based on the following factors concluded that the sexual and personal behaviour of the couple was inconsistent with a conjugal partnership.”
A.P. appealed the I.A.D. ruling to the Federal Court of Canada. This court determined that the officer’s decision was not reasonable, and sent it back to another officer for redetermination. Justice Fuhrer, in her judgment, was emphatic that the IAD had erred in holding that A.P. and A.M. were not a conjugal unit. Justice Fuhrer noted that, notwithstanding the differing orientation of A.P. and A.M. the two were, with the use of sexual aids, enjoy sexual intimacy. Moreover, argued Justice Fuhrer, M. v. H. (1999), a landmark Supreme Court Canada case on the rights of same-sex couples, provided a holistic framework for determining the existence of a conjugal union; sexual intimacy or the lack thereof was not necessarily a determining factor. Thus, concluded Justice Fuhrer, it was entirely possible that what she termed a ‘mixed-orientation couple’, even one that did not have any sexual intimacy, could form a conjugal union. Accordingly, the Federal Court remanded A.P.’s sponsorship application to another officer for redetermination.
The above series of events illustrates so many facets of Canada and the judicial system. The ability to challenge a decision one considers unjust. The expansive and evolving interpretation of statute. The independence and the ability of the Courts to intervene and determine that a decision is unreasonable, and therefore overturn it. The gradual but clear development in Canadian law that sexual orientation is an unacceptable ground of discrimination. The expansion of the Canadian understanding of the family – from the traditional heterosexual married couple (generally, with children) to include same-sex couples as well as those which are not formally married – like A.M. and A.F. The role of precedent, of other cases, as a basis for re-understanding the issue at hand. The supremacy Canadian Charter of Rights and Freedoms over laws and interpretations with which it finds itself in conflict.
Where to from this decision? A.P. and A.M. and their case go back to an immigration officer. The current Canadian government, which has emphasized the defence of the rights of sexual minorities, even going so far as to formally apologize for discrimination that previous governments perpetuated against LGBTQ2+ individuals, seems highly unlikely to challenge the Federal Court’s determination in any way. Will other current Canadian understandings of what the family is, for the purposes of immigration – who is a parent, who is a child, the means of determining a relationship is genuine – change? Will Parliament or subordinate rule-makers (Ministerial officials, etc.), pre-empt the Courts, or will the Courts continue to pioneer new interpretations? Will there be a backlash against the either phenomenon – say, a feeling that the Court has gone too far? How will other countries receive the dramatic decision emanating from Canada? Will they emulate it? Or forcefully reject it?
This much, we can say with confidence: The Federal Court’s decision in the case of A.P. and A.M., is both bold and grounded in Canadian jurisprudence, a product and a shaper of Canadian law. And it raises as many questions as it answers.
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