Mixed Sexual Orientations Are No Obstacle to Forming a Conjugal Relationship: AP v Canada
In a spousal immigration decision at the Federal Court last month, the legal definition of a conjugal relationship was expanded to include couples who have different sexual orientations — in this case, a gay man and straight woman. In AP v Canada (Citizenship and Immigration), 2020 FC 906 [AP v Canada], Justice Janet M. Fuhrer ruled that the Immigration Appeal Division’s (“IAD”) decision to dismiss AP’s sponsorship application for AM on the basis of their perceived asymmetrical sexual orientations demonstrated bias against mixed-orientation couples and hence was procedurally unfair.
AP is a permanent resident who came to Canada after escaping persecution for his sexual orientation. After re-connecting with his former close friend AM from his country of origin, he met up with AM in a different third country where they had sex resulting in pregnancy and a child, KP. They both decided to raise KP together as a family unit. After being unable to get married in a third country due to AP’s permanent residence status, AP decided to sponsor AM as his conjugal partner and KP to Canada.
Legal Framework: Defining Conjugal Relationship
The Immigration and Refugee Protection Act, SC 2001, c 27, section 12 [IRPA], allows a foreign national to be sponsored if they are a member of the family in relation to the sponsor. A conjugal relationship — which is included under the family class — is expanded on but not defined under section 2 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR]. The leading case defining relevant factors constituting a conjugal relationship is the family law case of M v H,  2 SCR 3 [M v H], which assessed whether same-sex couples were in a conjugal relationship or not. The factors include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, and societal perception of the couple. The Supreme Court of Canada, in M v H, makes a point to say “neither opposite-sex couples nor same-sex couples are required to fit precisely the traditional marital model” in order to demonstrate a conjugal relationship (M v H, para 59). However, in AP v Canada, the Court is neither assessing if the couple is “opposite-sex” nor “same-sex,” but rather the perceived compatibility of their sexual orientations – whether AP, a gay man, and AM, a straight woman, are in a conjugal relationship. Just as the M v H factors have been adapted to immigration context (Leroux v Canada Citizenship and Immigration, 2007 FC 403, para 23), the Federal Court’s decision to include mixed-orientation couples in the definition of a conjugal relationship for immigration may be adapted to the contexts of family, child custody, pension, and tax law.
Standard of Review
The standard of judicial review in AP v Canada is reasonableness, in which the Federal Court must determine whether the IAD’s decision “fundamentally misapprehended or failed to account for the evidence before it” (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, para 126). Justice Fuhrer underscores that “non-engagement with the evidence” can rebut the presumption that decision-makers did consider all evidence before making a decision (AP v Canada, para 15). In assessing whether the IAD reasonably assessed the evidence for AP’s sponsorship application, the main question in front of the Federal Court in AP v Canada was to determine whether the IAD’s decision was procedurally fair.
In AP v Canada, the Court ruled that the IAD failed in its job to reasonably assess the M v H factors when considering the evidence on a balance of probabilities, and instead “unreasonably narrowed the scope of a conjugal partner to sexually romantic relationships” (AP v Canada, para 30). The Court described the IAD’s actions as meeting the high threshold of a closed mind, which ultimately rendered its decision procedurally unfair due to bias. Therefore, the AP’s application for judicial review was granted, the IAD’s decision was set aside, and the matter has been remitted to a new IAD adjudicator for redetermination.
Analysis of M v H Factors
Justice Fuhrer remarked that, in assessing AP and AM’s relationship, IAD did not regard positive factors such as AP’s financial support of AM and KP, their families’ and friends’ perception of them as a couple, and both wanting to support their child together. Instead, Justice Fuhrer asserts the IAD egregiously over-emphasized the factor of sexual and personal behaviour when finding that “homosexual man and a heterosexual woman are [not] able to meet the sexual component of conjugal partnership” (AP v Canada, para 9). The IAD also cast as negative the facts of AP’s delayed disclosure of his sexual orientation, AM’s lack of knowledge of AP’s past relationships, and that AM’s parents were not aware of AP’s sexual orientation.
Justice Fuhrer claims that the IAD wrongly disregarded AP’s explanations of his non-disclosure and must consider the cultural contexts of disclosing “not through ‘Western eyes,’” citing Gjoka v Canada (Immigration, Refugee and Citizenship), 2017 FC 386 [Gjoka] (AP v Canada, para 22). In Gjoka, the Court rules the IAD disregarded the possibility that the wife did not ask her husband about his difficult past because she was from a “patriarchal society where marriages are arranged, and women are totally subordinate to men” (Gjoka, para 81). In AP v Canada, Justice Fuhrer means to say the IAD should consider that sexual and gender minorities may have difficulty disclosing information about their identities due to the cultural contexts such as those of AP’s country of origin. She further explains that AP’s lived experience of being personally persecuted for his sexual orientation should have led to the IAD flagging that disclosure to AM and AM’s parents, who were from the same country, would also not be an easy feat.
Justice Fuhrer also objects that, in considering this factor of sexual and personal behaviour, the IAD ignored evidence that AP expressed romantic love for AM, and the IAD did not consider that “a loving relationship centred on the concept of a joint family unit” can demonstrate a conjugal relationship (AP v Canada, para 18). She repeatedly states that sexual relations are only one factor and not a predominant nor necessary factor in assessing conjugal relationships. Justice Fuhrer finds that the IAD had “pre-determined conclusions” about whether mixed-orientation couples could form a conjugal relationship that precluded the IAD from even trying to assess AP’s application on the basis of all its specific evidence (AP v Canada, para 27). On the question of AP’s right to an unbiased hearing, Justice Fuhrer ruled that the IAD had a “closed mind” as it was not open to see outside of its stereotypes about mixed-orientation couples and therefore violated its duty of procedural fairness owed to AP (AP v Canada, para 27).
Broader Consequences of AP v Canada
Queer Visibility, a Trap?
It is strange times when a federal adjudicative body such as the IAD can accept “same-sex” couples but not “opposite-sex” couples with different orientations because it does not believe they would be committed to each other without the ability to have sex insofar as the IAD narrowly understands sexual orientation. We can imagine that a few decades ago, when heteronormativity was presumed in law, the IAD would not ask such intrusive questions about AP and AM’s sexual life and ability to be intimate. However, it is in today’s context of gay and lesbian couples being read into the law that the administrative state can capture more information about intimate personal lives and use it to obstruct immigration. Therefore, the costs of queer visibility, in this case, are being experienced as increased state surveillance, which puts into question the utility of self-disclosure in the administrative context for the purposes of queer liberation. While reading AP v Canada, we must remember that IRPA and IRPR serve the social purpose of regulating migration rights and gatekeeping who gets to enter Canada for its own neoliberal political and economic goals. The role of courts in maintaining judicial oversight over spousal immigration and definitions of families can therefore reign in government and administrative state’s intrusive reach into individual people’s lives like the Federal Court in AP v Canada has done.
Rethinking the Family Unit
The obvious social script operating under IAD’s decision, which Justice Fuhrer rightly exposed, was that the IAD saw conjugal relationships as only including couples it thought could be sexually intimate with each other — in this norm, same-sex couples were included. The preoccupation with the nuclear family constructed then does not seem to be with sexual reproduction — since AP and AM had a child — but rather social reproduction; about what kind of a couple the IAD wanted to accept for the purposes of immigration. The possibility that AP and AM would not be conjugal because of their different orientations presented itself as a block to the Western nuclear family unit of two people — heterosexual or homosexual — being able to stay committed and raise children together. It also reduces sexual compatibility to be limited to the question of orientation. By ruling mixed-orientation couples as being capable of conjugality, Justice Fuhrer demonstrates that the “traditional marital model” rejected by M v H meant thinking beyond a sexually compatible relationship.
The IAD’s conception of a conjugal couple obliquely constructs queer relationships to be within the very narrow definition of not just being “same-sex,” but having the same sexual orientation just like straight relationships. This is a disservice to queer people and relationships today that are multi-faceted, dynamic, and constantly expanding in definition as 2SLGBTQIA+ grassroots organizers continue to challenge the heteronormative — and homonormative — structures like the Western nuclear family unit. AP, who identifies as a gay man, himself testified about how his sexual relationship with AM was complicated, and with his shifting mindset, he felt their relationship — including sexual relationship — was “‘possible’ notwithstanding his orientation.” In describing the “richness of feelings or being having sex with who you love,” AP’s testimony is a reminder that families and love exist in a multitude of ways, not necessarily captured by current societal descriptive labels (AP v Canada, para 17). Ultimately, Justice Fuhrer’s finding that “different sexual orientations does not foreclose the possibility of AP and AM establishing they are in a committed relationship of some permanence” (AP v Canada, para 16) opens the door for different kinds of family structures and conjugal relationships to be recognized. Arguably, conjugal relationships could include relationships that are asexual, aromantic, mixed orientations of different gender identities, non-monogamous, polyamorous, and potentially even platonic, as long as they sufficiently fulfill the M v H factors. On that front, this Federal Court decision seems like a step in the right direction toward recognizing the complexity of conjugal relationships, especially in the context of relationships with queer people.
No ‘Western eyes’ for the West
Justice Fuhrer’s notice to the IAD to not assess conjugal relationships through “Western eyes” seems progressive since it asks the IAD to be culturally sensitive when assessing the strength of different familial relationships (AP v Canada, para 22). However, in doing so, the Court frames Western norms as if they are not “patriarchal” nor homophobic; as if a queer person in the West would have no barrier to the disclosure of their identity. Considering that expanding the definition of conjugal relationships can affect other domestic legal contexts beyond immigration, it is important to ensure conjugal partners already in Canada are not precluded from benefits of conjugal relationships in other areas of law if they do not meet the presumed Western norms of women’s independence and disclosure of sexual and gender identity. It is a reminder that just as easily as Justice Fuhrer can open the doors of defining conjugal relationships through common law, future cases can close them to serve the desired normative understandings of the family unit.
While the Federal Court’s decision in AP v Canada was a step in the right direction of ensuring adjudicators are not closed-minded in maintaining procedural fairness, we must continue to interrogate the broader utility for and costs of self-disclosure by 2SLGBTQIA+ individuals for the purposes of the administrative state.