Ontario Civil

Conflict of Laws

Grave risk children would be put into intolerable situation if returned to Croatia

Father applied under Hague Convention to have his two children, aged five and three, returned to Croatia. Father was born in Canada but had resided in Croatia for 31 years. Mother of children was of Croatian descent and was born in United States. She also previously lived in Canada for nine years while married to Canadian citizen. Parties met in Croatia and were married there on October 21, 2006. They resided there and their children were born in Croatia. Father argued that he was persuaded to go on vacation to North America and that during vacation it developed that mother wanted to settle in Ontario, but he never shared that intention. Mother asserted that they were both dissatisfied in Croatia and interested in relocating to North America. Purpose of trip was to search for opportunities in North America and they ultimately decided to become resident in Ontario. Application dismissed. Trial judge found that as of February 2012, parties shared common intention to reside, and were habitually resident, in Ontario. As such, Hague Convention was not applicable. In any event, trial judge was satisfied that there was grave risk that children would be put into intolerable situation if they were to return. Father had engaged in physical abuse of mother and oldest child, and just as significantly psychological abuse. Further, given small town family resided in while in Croatia and father’s relationships with local officials, risks that existed could not be mitigated by recourse to social service agencies.

Cacic v. Cacic (Jul. 16, 2013, Ont. S.C.J., Sproat J., File No. 6739/12) 231 A.C.W.S. (3d) 443.

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