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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.

Until July 20, 2005, the Federal Government had not yet passed a law redefining marriage to conform to recent court decisions.

The introduction of a federal gender-neutral marriage definition made Canada the fourth country in the world, and the first country outside Europe, to legally recognize same-sex marriage throughout its borders.

Before the federal recognition of same-sex marriage, court decisions had already introduced it in eight out of ten provinces and one of three territories, whose residents collectively made up about 90% of Canada's population.

Given the Supreme Court ruling, the role of precedent in Canadian law, and the overall legal climate, it was very likely that any challenges to legalize same-sex marriage in the remaining four jurisdictions would be successful as well.

Indeed, federal lawyers had ceased to contest such cases A draft of what would become Bill C-38 was released on July 17, 2003, by the Liberal Minister of Justice, Martin Cauchon.

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.Defeat of the bill in Parliament would have continued the status quo and probably incremental legalization, jurisdiction by jurisdiction, via court challenges. However, this decision stopped short of giving them the right to full legal marriage.This trend could have been reversed only through Parliament passing a new law that explicitly restricted marriage to opposite-sex couples notwithstanding the protection of equality rights afforded by the Canadian Charter of Rights and Freedoms or by amending the Canadian Constitution by inserting the clause "marriage is defined as being between a man and a woman", as was recommended by several conservative religious groups and politicians. Most laws which affect couples are within provincial rather than federal jurisdiction.The Court agreed with the lower court that the traditional definition of marriage was discriminatory and that same-sex marriage was legally permitted. The court did not allow the province any grace time to bring its laws in line with the ruling, making Ontario the first jurisdiction in North America to recognize same-sex marriage.However, unlike the previous three court decisions, the Court of Appeal did not suspend its decision to allow Parliament to consider the issue. The first same-sex couple married after the decision were Michael Leshner and Michael Stark.Note that in some of these cases, some marriages were in fact legal at an earlier date (for example, an Ontario ruling held that marriages performed in January 2001 were legal when performed), but the legality was questioned.