A Toronto gay couple who were attempting to be the first in Canada to receive a marriage licence were refused Thursday by the city clerk.

Gay partners Michael Leshner and Michael Stark said they thought clerk Ulli Watkiss could have given them the licence.

But the couple said they do not blame the city.

"There's no mortar left ... between the bricks of legislation that says gays and lesbians can't marry. In effect, that system is dead, gone, it's like a stake through Dracula's heart," the 54-year-old Mr. Leshner told CBC Newsworld.

"What we're trying to do is to get married as soon as possible and the ball is in Jean Chrétien's corner," he said.

"Premier Eves of Ontario has said he wants us to get married. The city clerk has said that she wants to issue the licence. It's up to Jean Chrétien, and for that matter Paul Martin, to say does their vision of Canada include a million or so gays and lesbians?" Mr. Leshner, who works as a Crown attorney, said.

On Friday, an Ontario court ruled that the prohibition against legally sanctioned gay and lesbian unions is discriminatory and unconstitutional.

The three Ontario Superior Court judges, who determined that the present definition of marriage violates the Canadian Charter of Rights and Freedoms, said they suspended their ruling for this period to give members of Parliament the necessary time to consider a new definition that better reflects Canadian values.

The landmark decision, which is expected to have nationwide and even international ramifications, gives Parliament two years in which to produce a new designation that includes same-sex couples.

If Parliament fails to comply with the judicial ruling, the Ontario law will have to be rewritten and gays and lesbians will be allowed to marry.

Ottawa, which is responsible for defining marriage, is expected to appeal the Ontario ruling to the Supreme Court of Canada.

Martha McCarthy, lawyer for Mr. Leshner and Mr. Stark, told globeandmail.com that the federal government has until next Friday to launch a leave to appeal.

Ms. McCarthy told globeandmail.com that the clerk was advised by the city's legal counsel that she was not obligated to issue the licence until the expiry of the 24 month period or the absence of an appeal.

"She played an apolitical role," Ms. McCarthy said.

The lawyer for the two men, along with seven other gay Toronto couples seeking marriage licences, said that in her opinion the clerk would not have experienced legal difficulties if she had issued the licence.

"She has the authority to decide whether or not to issue the licence herself," Ms. McCarthy said.

And Mr. Leshner's own opinion is that since marriage licences are administered by the province (although issued by the city), and Ontario Premier Ernie Eves has said the province will not appeal and that he personally supports gays' right to marry, the city clerk has no grounds to deny him a licence.

However, Ms. Watkiss admitted to reporters and to the couple that she was personally in favour of granting the licence, Ms. McCarthy said.

Ms. Leshner said while her clients are disappointed they could not get a licence Thursday, they have been together 21 years so they are willing to wait a bit longer.

"We're here today to say we love each other, give us a licence, let's get married like anyone else," Mr. Leshner said.

Mr. Stark said the couple's next step is to see whether Ottawa applies for a leave to appeal, and said they will be planning an engagement party in the interim.

Toronto councillor Kyle Rae said he plans to present a motion to city council urging the city to issue marriage licenses to homosexuals later this month.

With reports from Kim Lunman and Gay Abbate