Al-Smadi, Re, (1994) 90 Man.R.(2d) 304 (QBFD)

• Judge: Schulman, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: January 10, 1994
• Jurisdiction: Manitoba
• Citations: (1994), 90 Man.R.(2d) 304 (QBFD)

Al-Smadi, Re (1994), 90 Man.R.(2d) 304 (QBFD)

MLB headnote and full text

Emman Al-Smadi by her father and next friend Ghassan Alsmadi (applicants)

(File No. FD 93-01-33180)

Indexed As: Al-Smadi, Re

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

Schulman, J.

January 10, 1994.

Summary:

A 15 year old girl applied for the consent of the court, pursuant to s. 19(1) of the Marriage Act, to her marriage.

The Manitoba Court of Queen's Bench, Family Division, allowed the application.

Estoppel - Topic 394

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - In family law cases - A 14 year old girl unsuccessfully applied for the court's con­sent to her marriage to a 27 year old Jordanian doctoral student - At 15, she brought a second application adding the additional ground that she was pregnant - The Manitoba Court of Queen's Bench, Family Division, held that the application was not barred by the doctrine of res judicata - There was no opposing party vexed by the second appli­cation and the public interest against reliti­gating issues was counter-balanced by the public interest in considering whether to allow the marriage in order to legitimize the applicant's child - See paragraphs 9 to 11.

Family Law - Topic 291

Marriage - By minors - A 15 year old girl applied for the court's consent to her mar­riage to a 27 year old Jordanian doctoral student - Both were practising Muslims - Under Islamic law, a girl could marry upon reaching puberty if her father con­sented - Her father, who was divorced and had custody of the girl, consented to her marriage and they went through an Islamic religious marriage ceremony - They lived together - She was pregnant - The Mani­toba Court of Queen's Bench, Family Division, consented to the marriage, where satisfied that it was not a marriage of convenience or influ­enced by a dowry, consent was voluntary, suitable child care arrangements were made and she would continue her educa­tion.

Cases Noticed:

Al-Smadi v. Child and Family Services (Man.) (1993), 90 Man.R.(2d) 1 (Q.B.), refd to. [para. 7].

Solomon v. Smith and Montreal Trust Co., [1988] 1 W.W.R. 410; 49 Man.R.(2d) 252 (C.A.), refd to. [para. 11].

Fox, Re (1973), 1 O.R. 146 (Co. Ct.) refd to. [para. 18].

A. and T., Re (1984), 30 Man.R.(2d) 79 (Q.B.), refd to. [para. 18].

Lake Manitoba Estates Ltd. v. Commun­ities Economic Development Fund (1989), 61 Man.R.(2d) 173 (Q.B.), refd to. [appendix].

Lake Manitoba Estates Ltd. v. Commun­ities Economic Developments Fund (1984), 27 Man.R.(2d) 118 (Q.B.), affd. [1985] 1 W.W.R. 36; 28 Man.R.(2d) 219 (C.A.), refd to. [appendix].

Lutz v. Pyke (1977), 36 N.S.R.(2d) 420; 64 A.P.R. 420; 76 D.L.R.(3d) 152 (Co. Ct.), refd to. [appendix].

Doering v. Grandview (Town) (1975), 7 N.R. 299; 61 D.L.R.(3d) 455 (S.C.C.), refd to. [appendix].

Hayward v. Hayward, [1961] 1 All E.R. 236, refd to. [appendix].

Hobson v. Gray (1958), 13 D.L.R.(2d) 404 (Alta. T.D.), refd to. [appendix].

Pugh v. Pugh, [1951] 2 All E.R. 680, refd to. [appendix].

Statutes Noticed:

Court of Queen's Bench Act, S.M. 1988-89, c. 4; C.C.S.M., c. C-280, sect. 41(n) [para. 12].

Marriage Act, R.S.P.E.I. 1988, c. M-3, generally [appendix].

Marriage Act, R.S.A. 1980, c. M-6, gen­erally [appendix].

Marriage Act, S.M. 1906, c. 41, sect. 16 [para. 14].

Marriage Act, R.S.M. 1970, c. M-50, generally [appendix].

Marriage Act, R.S.M. 1987, c. M-50; C.C.S.M., c. M-50, sect. 18(1), sect. 19(1), sect. 19(2), sect. 19(3) [para. 12].

Authors and Works Noticed:

Blackstone's Commentaries on the Law of England (1854), vol. 1, p. 546 [appen­dix].

Bromley, P.M., Family Law (1981), p. 32 [appendix].

Canada, Proceedings of the Fifty-fourth Annual Meeting of the Conference of Commissioners on Uniformity of Legis­lation in Canada (1972), appendix 1, pp. 99 ff [appendix].

Canada, Commissioners on Uniformity of Legislation in Canada, Minimum Age for Marriage (1972), p. 118 [para. 17].

Canada, Department of Justice, Report on Family Law Ontario Law Reform Com­mission, Part 2, Marriage (1970), pp. 36 ff. [appendix].

Canadian Family Law Guide, C.C.H., ss. 1140, 1150, 2300 [appendix].

Corpus Juris Secundum (1925), vol. 38, p. 1283 [appendix].

da Costa, D. Mendes, Studies in Canadian Family Law, vol. 2, pp. 664 ff. [appen­dix].

Davies, C., Family Law in Canada (1984), p. 64 [appendix].

Manitoba, Debates and Proceedings of the Legislative Assembly (2nd Session, 29th Legislature, 1970), p. 543 [para. 16].

Pollock and Maitland, History of English Law (1895), pp. 387 ff. [appendix].

Spencer-Bower and Turner, Res Judicata (2nd Ed. 1969), p. 1, para. 9 [para. 11].

Counsel:

Chad H. Schaan, for the applicants;

Joy Cooper, amicus curiae.

This application was heard before Schul­man, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, Family Division who delivered the following judgment on January 10, 1994.