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Until the passage of Bill C-38, the previous definition of marriage remained binding in the four jurisdictions (two provinces, two territories) where courts had not yet ruled it unconstitutional, but void in the nine jurisdictions (eight provinces, one territory) where it had been successfully challenged before the courts.Before the enactment of federal legislation recognizing same-sex marriage, therefore, the application of federal marriage law differed depending on the province or territory.

Most legal benefits commonly associated with marriage had been extended to cohabiting same-sex couples since 1999.The court also ruled that two couples who had previously had a wedding ceremony in the Metropolitan Community Church of Toronto using an ancient common-law procedure called the reading of the banns would be considered legally married. in May of that year had required the Federal Government to change the law to permit same-sex marriages (see above). will result in an unequal application of the law between Ontario and British Columbia".On September 13, 2004, the Ontario Court of Appeal declared the Divorce Act also unconstitutional for excluding same-sex marriages. The couple who brought the suit, Michael Hendricks and René Leboeuf, immediately sought a marriage licence; the usual 20-day waiting period was waived, and they were wed on April 1 at the Palais de justice de Montréal.Thereafter, many same-sex couples obtained marriage licences in those provinces; like opposite-sex couples, they did not need to be residents of any of those provinces to marry there.The legal status of same-sex marriages in these jurisdictions created an unusual jurisdictional issue.The decision of the Ontario Government to recognize two marriages that took place in Toronto on January 14, 2001, retroactively makes Canada the first country in the world to have a government-legitimized same-sex marriage (the Netherlands and Belgium, which legalized same-sex marriage before Canada, had their first in April 2001 and June 2003, respectively).

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