Case Update (28 Dec 2021): Sargsyan v. Martirosyan; comity as to Canadian order, application of Canadian law

Ms. Martirosyan appeals an order of divorce, giving her husband, Mr. Sargsyan his equitable share of the parties' marital property. The key issue in her appeal related to their date of their separation. The parties married in Armenia, immigrated to the United States, had a son, and then moved to Canada. On or about November 1, 2008, Mr. Sargsyan moved out of the Ontario home. On July 28, 2009, Ms. Martirosyan filed a court case in the Superior Court of Justice Family Court Branch in Ontario. In this court filing, she averred that the parties had lived separate and apart since November 1, 2008. She sought spousal and child support, and sole custody. She also sought equalization of their property.

On February 24, 2011, the Canadian court entered an order for custody, child, and spousal support. The support obligations were retroactive to January 1, 2009. The order did not divide their marital property nor grant them a divorce. In October 2013, Ms. Martirosyan purchased a home in Ontario. A month or two later, Mr. Sargsyan and his mother moved into this home. Mr. Sargsyan then moved to Columbus, Ohio in July 2017 with the child. Ms. Martirosyan moved in September 2017, after selling the home in Canada. They resumed living together in a home in Columbus that Ms. Martirosyan purchased.

On August 6, 2018, Mr. Sargsyan filed for divorce in Ohio. He designated September 13, 2017 as the date they separated. On September 7, 2018, Ms. Martirosyan answered and claimed that October 2008 was their date of separation. The court actually selected the date on which she answered as the separation date, and not any earlier date.

On appeal, among other things, she argued that the Ohio court should have accepted a 2008 separation date because the Canadian court accepted her averment in its proceeding, and that under Canadian law, they were separated and therefore each was to keep his or her property. The court rejected her appeal on these arguments, indicating that the Canadian court order did not affirm an actual date of separation, and even if it had, recognizing it as a matter of comity is not a guarantee. In fact, the order did not divorce the parties or divide their property - that was to be done in Ohio under this action. The court also refused to defer to Ontario law, because Ms. Martirosyan did not provide sufficient evidence of the substance of Ontario law.