The Mixed-Orientation Couple: a dramatic development in Canadian immigration law

 ANALYSIS: Canadian judge rules couples do not have to be of the same sexual orientation for conjugal sponsorship

Immigration law both shapes and reflects the society that creates it.A recent and important case, A.P. v. Canada (Citizenship and Immigration), 2020 FC 906 (CanLII) makes this saying clear.In it, we see the dialogic, interpretation, and practical nature of Canadian policy and law.

The Federal Court of Canada recently face a case including a rather unusual set of situation, where a gay man and a straight lady who shared a kid were denied marital sponsorship.The realities are as the following: 

A man known to us just by his initials, A.P., came to Canada quite a long while prior. A.P. declared that he was subject to  persecution in his unnamed country of beginning due to being gay.A.P's claim was successful,and he gained secured person status and permanent residency in Canada.

Some time later, A.P. met up,  in a third country, with a heterosexual female friend from college named A.M.After what the court depicts as a 'night on the  town', A.P. and A.M. had sexual relation and a kid resulted from this encounter.

A.P. and A.M. decided to try to parent to kid together as a pair, although  A.M. continued to identify as gay, not bisexual. A.M. couldn't go back to his home country,  and A.M. and A.P's endeavors to migrate to or wed in a third country rejected. In consequence, A.P. looked to support the kid, and A.M. as A.P's. marital partner, by the family class of Canadian immigration.

A Canadian immigration officer refused A.P's application.A.P. then requested the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB), a particular Canadian administrative court that handles such cases. The IAD maintained the officer’s determination that A.M. was not A.P's. marital partner, implying that A.P. couldn't sponsor her as such.Among different elements, the IAD refered to, in its choice, its decision that "a homosexual man and a heterosexual woman are [not] ready to complete the sexual segment of marital partnership,”and based on the following elements decided that the sexual and personal behaviour of the pairs was inconsistent with a marital partnership.”

A.P. requested the I.A.D. ruling to the Federal Court of Canada.This court decided 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 blundered in holding that A.P. and A.M. were not a marital unit. Justice Fuhrer noticed that, despite the varying orientation of A.P. and A.M. the two were, with the utilization of sexual aids, enjoy sexual closeness.In addition, argued Justice Fuhrer, M. v. H. (1999), a landmark Supreme Court Canada case on the rights of same-sex pairs, given a aholistic framework  to deciding the presence of an marital union; sexual closeness or the deficiency thereof was not  reqlly a deciding element.Hence, concluded Justice Fuhrer, it was altogether conceivable that  what she named a '‘mixed-orientation pairs’ even one that didn't have any sexual closeness, they could shape a marital union.Correspondingly,the Federal Court remanded A.P's. sponsorship application to another officer for redetermination.

The above series of events delineates so many facets of Canada and the judicial system.The eligibility to challenge a decision one thinks about unjust.The expansive and evolving interpretation of statute. The independence and the capability of the Courts to intervene and determine that a decision is unreasonable, and therefore finished it. The gradual but clear improvement in Canadian law that sexual direction is an unacceptable ground of segregation. The development of the Canadian understanding of the family – from the traditional heterosexual wedded couple (normally, with kids) to incorporate same-sex pairs as well as those which are not officially wedded– like A.M. and A.F. The role of precedent, of other matters, as a basis for re-understanding the case at hand.The supremacy Canadian Charter  of Rights and Freedoms over laws and interpretations  with which it finds itself in clash.

Where to from this decision A.P. and A.M. and their matter return to an immigration officer. The current Canadian government, which has emphasized the defence of the rights of sexual minorities, although going so far as to officially apologize for discrimination that past governments propagated against LGBTQ2+ people, seems highly improbable to challenge the Federal Court's determination in any way.Will other current Canadian understandings of what the family is, for the goals of immigration – who is a parent, who is a kid, the methods for deciding a relationship is real – change? Will Parliament or subordinate rule creators (Ministerial officials, etc.), pre-empt the Courts, or will the Courts keep on pioneering new interpretations?Will there be a backlash against the either phenomenon – say, a feeling that the Court has gone excessively far? How will other countries get the dramatic decision  emanating from Canada?Will they copy it? Or forcefully  reject it? 

This much, we can say with certainty: The Federal Court's decision in the case of A.P. and A.M., is both bold and grounded in Canadian statute, an item and a shaper of Canadian law.Furthermore, it raises as many questions as it answers.