Supreme Court

                               SUPREME COURT OF NOVA SCOTIA

(FAMILY DIVISION)

Citation: Austin v. Jewkes, 2012 NSSC 97

Date: 20120308

Docket: 1201-065392

Registry: Halifax

Between:

Colleen Anne Austin

Petitioner

v.

Bradley Robert Jewkes

Respondent

Judge:                            The Honourable Justice Moira C. Legere Sers

Heard:                            January 31, 2012 in Halifax, Nova Scotia

Counsel:                         Barbara Darby for Colleen Austin

Bradley Jewkes, Self-Represented

By the Court:

[1]              This Petition for Divorce began on June 7, 2011.  An Answer was filed on July 21, 2011. 

[2]              Colleen Anne Austin, (the "petitioner") is seeking an equal division of assets and debts and a lump sum award of spousal support.

[3]              Bradley Robert Jewkes, (the "respondent") is seeking an unequal division of assets in his favour and a division of matrimonial debts.  He contests the application for spousal support.

[4]              The parties cohabited prior to the marriage commencing April 2008, married on April 11, 2009 and separated on August 26, 2010.  The relationship lasted slightly less than two and one-quarter years.

[5]              No children were born of this union.

[6]              The petitioner and the respondent were both 39 years of age at the time of the hearing.  Both were employed.

[7]              All jurisdictional elements have been proven.  There is no possibility of reconciliation.  I grant a divorce on the grounds of one year's separation.

Income - Petitioner

[8]              The petitioner's 2009 income was $41,742 and 2010 was $24,527.  Her December 20, 2011 statement of income reflects an annual income of $48,422.40.

[9]              She was placed on stress leave in October of 2009.  In February 2010 she incurred a back injury resulting in a lay off.  She received EI benefits ending in November 2010.  From November 2010 to March 2011 she had no income until she became re employed.

[10]         She is now earning more than she did when the relationship began.

Income - Respondent

[11]         Post secondary school, the respondent attended Holland College for a 10-month course in 1992 and subsequently attended St. Mary’s University for a six month course in management.  He has been employed for eight years in the same company and is currently a foreman responsible for the supervision of employees working on his shift.

[12]         He earned $69,469 in 2008; $70,262 in 2009; and $73,960 in 2010. 

[13]         His RRSP withdrawal of $22,121.25 for the year 2010 brought his 2010 income to $96,082.

Disclosure

[14]         The petitioner was represented by counsel throughout.  The respondent was represented until his counsel withdrew shortly before the hearing by notice to the court on January 24, 2012. 

[15]         The respondent has appeared in court proceedings relating to his previous marriage and is familiar with the court process.

[16]         The respondent’s lack of forthright and timely disclosure has been a problem throughout this proceeding.  He did not respond entirely, accurately or in a timely fashion to the demands for disclosure.

[17]         His statement of property filed July 21, 2010 did not include all assets nor exact valuations.

[18]         This made it very difficult to track the assets and debts, determine their source and the date of inception and balance as of separation as well as their current values.

[19]         At the pre-trial conference on October 14, 2011 the issues were clearly identified.

[20]         The respondent was on notice that the petitioner needed her health benefits maintained pending resolution of the issues between the parties.  The division of property, pension and debt division were also identified as relevant issues.

[21]         Directions were given to both parties that their statements of property with supporting documentation were to be filed by set dates.

[22]         The directions were repeated on two occasions. 

[23]         Despite inadequate documentation and  in order to conclude this matter, the respondent was permitted to give viva voce evidence to allow him to respond to the petitioner’s affidavit evidence and to clarify and add his own evidence with respect to the division of assets and debts.

[24]         The respondent then submitted a post trial submission to the court on February 16, 2012.

[25]         In these post hearing submissions, he offered new evidence, including evidence regarding the cashing in of his RRSP to confirm that his money was used as the down payment on the home, thus justifying an unequal division of the house proceeds. 

[26]         The petitioner did not have an opportunity to see these documents in advance or to question the respondent about them.

[27]         The respondent also confirmed under an item entitled "Finances" that he was required to sell his RRSP to pay down matrimonial debt.  Unfortunately, the respondent did not identify how much debt he had coming into the marriage.

[28]         Only to the extent the evidence properly tendered and subject to cross examination is corroborated by this submission is it considered.  The respondent had ample time and opportunity to introduce evidence to support his case for unequal division and simply failed to attend to the repeated directions to file.  

[29]         His memory on financial transactions was deficient, particularly on cross examination.  He could not explain large deposits into and out of the joint account post separation although he was responsible for the transfers.

[30]         The respondent has not provided information as to the source of the debts and explained why, when paying down the debts, he preferred to pay down all of his matrimonial indebtedness, leaving the petitioner's indebtedness unpaid.

[31]         On November 24, 2011, the presiding justice reviewed the former deadlines outlined by the justice pre-trialing the matter on October 14, 2011. 

[32]         The matter was set down on my direction for a further pre-trial, at which time, late in the pre-hearing proceedings, the petitioner sought to amend her petition to include spousal support. 

[33]         At the same time, on January 24, 2012, the respondent filed a notice of intent to act on his own.  The respondent was encouraged to obtain legal advice.

History

[34]         This is the first marriage for the petitioner; the second for the respondent.  There are no children of the marriage. The respondent's child from a previous marriage moved in with the parties for a period of time.

[35]         This required the petitioner to take on the role of a parent providing meals, helping with school projects, cleaning, driving the child to and from school, etc.

[36]         Police were involved on a number of occasions including on August 26, 2010 when the petitioner left the matrimonial home.

[37]         As a result of the circumstances of her leaving, the petitioner was left without access to any of her possessions.  She stayed in a hotel room and ate in restaurants.

[38]         On September 13, 2010, she moved in with her sister and began  paying rent and utilities. 

[39]         The respondent remained in the matrimonial home, changed the locks and  the mailbox key. 

[40]         During the period of time that the respondent has occupied the home, he has had another person in the home and a girlfriend as well.  He had the opportunity to reduce his expenses.

[41]         In the spring of 2011 a restraining order was placed on the respondent to deal with threatening behaviour toward the petitioner.

Accumulated assets and debts

[42]         Neither the petitioner nor the respondent spoke at length about what, if any, assets and debts they brought into the relationship.  Thus, it was not possible to do a thorough evaluation of their respective asset and debt situation prior to the relationship as compared to the date of separation.

First Home

[43]         It is clear that there was little to no equity arising out of the sale of the respondent's previously owned home in Truro prior to the purchase of their matrimonial home.  The petitioner only lived in this home for a few months.

[44]         Each party has been assessed to repay a debt in relation to this home and are required to pay back funding they received from government programs for renovations done to this home.  These debts have not been included in this division.  Little evidence was presented regarding their respective obligations.

Matrimonial Home

[45]         The parties moved into their newly built matrimonial home in Oakfield, Nova Scotia in December 2009.

[46]         They made a down payment of $14,290 from their joint bank account.  The respondent maintains this came from his inheritance.  During the hearing he did  not provided bank accounts to prove the origin of these funds.

[47]         The joint account was also used to deposit joint funds during the relationship.  From this joint account the respondent's child support and legal fees for the dissolution of his previous marriage were paid.  Thus, the petitioner helped pay down the respondent’s indebtedness.

[48]         It is impossible on the evidence before me to sort out with equity and exactness whether the respondent should be credited with this payment given the source of other payments into the joint account, the payment of his debts and their joint debts that also occurred through this account. 

[49]         The respondent subsequently included a Waterhouse Financial Planning account in his submissions showing a withdrawal on October 23, 2009 of $26,533.17.  If indeed that came from an inheritance, and I have no proof of that, then the investment into the matrimonial home changes the status of that money from an inheritance to monies funding matrimonial purposes. 

[50]         The only argument the respondent would have to be credited with that down payment would be an argument under section 13 of the Matrimonial Property Act, R.S. 1989, c.275.  He has not provided evidence that would allow me to consider an unequal division of the equity.

Valuation of the Matrimonial Home

[51]         The respondent advised that he was agreeable to an appraisal being performed with the cost of such an appraisal being shared equally. 

[52]         However, when the petitioner had an assessor visit the property for valuation, the respondent would not permit access to one of the rooms.  The respondent also refused to allow the appraiser to take pictures.  Therefore, no assessment has been provided.

[53]         The respondent has not provided credible information to the court regarding his valuation of the matrimonial home or contents. 

[54]         Initially, the petitioner estimated, after speaking to three real estate agents, that the house could be listed at $344,900. 

[55]         If listed with an agent associated with the petitioner, the parties will benefit by a reduction or rebate in the commission. 

[56]         The respondent has refused to agree with the agent named by the petitioner.

Other Assets

[57]         Other assets purchased within the marriage were a sea-doo ($7,000), a generator, a snow blower and power saws.

[58]         The value of the respondent's defined contribution pension plan as of March 31, 2010 was $16,701.22.  The petitioner is listed as his spouse and beneficiary on that plan.  The value as of March 31, 2011 was $22,914.76.  His friend, Patrick Martell, is now listed as beneficiary of this plan.

Vehicles

Leased vehicle

[59]         The parties had two vehicles, a 1999 Toyota and a leased 2008 Dodge Avenger.  The petitioner contributed $1,500 to the purchase of these cars by way of the sale of her Honda in October 2009.

[60]         The leased vehicle was in the respondent’s possession the first week of August 2011.  The petitioner alleges that the kilometres allowable for the lease exceeded the agreement before she left the matrimonial home and that the car was in immaculate condition. 

[61]         The leased vehicle was returned to the respondent in August 2011 and remained with him until November 9, 2011.

[62]         The petitioner alleges that the additional wear and tear and the additional kilometres arose subsequent to separation and were caused by the respondent.

[63]         While the vehicle was in the petitioner's possession, she was required to effect maintenance on the vehicle by way of an oil change, tires, installation of tires and tire rods and services, for a total of $1,072.82.

[64]         When the vehicle was returned, there were additional expenses of $2,648.31.

[65]         These costs and penalties shall be shared between the parties.

Toyota Corolla

[66]         The second vehicle, the Toyota Corolla, was listed in the respondent's statement of property at $1,000.  This was corrected by the respondent to reflect $1,600, the value he will receive from the insurance company because the vehicle has been written off.  

[67]         This amount shall be shared equally.  He has not proven any reduction is in order.

Motorcycle

[68]         There is a motorcycle, a Honda Gold Wing.  The respondent advised that he purchased the motorcycle for $23,000 from his inheritance in 2006 well in advance of the marriage.  The only value produced by the respondent is contained in his statement of property (Exhibit 20) of $8,000.  This is unsupported by any evidence.

[69]         The petitioner estimates its value as $18,000 based in part by a similar motor vehicle with an asking price of $15,000.

[70]         The respondent advises that minimal maintenance costs were paid out of their joint account.  This was not one of the couple's main vehicles.  It was not an asset frequently enjoyed by the couple and it was purchased from the respondent's inheritance.  I exclude this asset from division.

ATV

[71]         The petitioner accepts the respondent’s valuation of the ATV at $1,000 and accepts that he sold the snow blower for $600.  They was purchased during the marriage and the proceeds will be divided equally.

Joint account

Exhibit 12

[72]         The parties had a joint account which held less than $70 when the parties started their lives together.

[73]         Each contributed to this account.  The respondent admits he paid his legal fees for his previous divorce out of this account and his child support was paid out of this account.  Thus, both parties contributed to his debts out of household monies.

[74]         The final separation date was August 26, 2010.  On August 13, 2010, their joint account held $3,339.95.  On August 16, 2010, the respondent depleted this asset by withdrawing first $2,500 and on the same day $1,500, resulting in a deficit which continued until September 24, 2010.

[75]         The respondent does not deny the suggestion that he depleted the cash, paid down his debts and continued the account in a deficit position until the petitioner took her name off the account a day or two before September 24^th.  On that date, he transferred $6,000 back into the account.  He does not deny his goal was to ensure the petitioner had no access to the funds.

[76]         On September 13, 2010, he unilaterally sold the sea doo and deposited the $7,200 proceeds on September 13^th into the account.  He then took out $4,000 on September 16^th and put this toward his BMO MasterCard and his Sears Mastercard.  He also deposited $9,800 and withdrew the same on September 17, 2010.

[77]         While his statement of property does not indicate where this additional money came from, neither could the respondent account for the source of these funds.

[78]         What is clear is that the respondent was accessing funds not disclosed in his statement of property to maintain himself and to pay down his debt.  His memory of these transfers in and out of this account is purposefully vague.

[79]         The balance in the joint account of $3,339.95 shall be shared between the parties. 

[80]         Although an overdraft does not currently exist, should the parties be called on to pay any penalties, the penalties shall be the respondent's responsibility and he will indemnify the petitioner.

Subsequent Transfers of Cash

[81]         The petitioner notes there were money transfers into the joint account after separation in the amount of $15,800.  The petitioner argues that these transfers of money shows hidden assets and cash and she should be credited with an equal division.

[82]         I have insufficient information regarding these deposits including their source and their disposition to include them in a division. 

[83]         This is a very brief marriage.  To obtain the relief requested, the petitioner bears some burden to further define the asset even in the face of the respondent’s failure to be forthright about his assets.

[84]         I decline to include this in the division.

Joint RRSPs

[85]         The parties contributed to an RRSP with Sunlife in April 2009, with a value of $5,713.80 on December 31, 2009.  The respondent collapsed this RRSP in November 2011 and paid down his debt.  He did not provide a value for this asset.  The value of that asset shall be divided equally.

The Petitioner's RRSPs

[86]         The petitioner received pension funds from her former employment.  She cashed in her RRSP early in the marriage and put $4,000 on joint debt depositing $400 into the joint account and the remainder in an RRSP, one with a value of $1,496.66 and another with a value of $2,426.12 (Exhibit 5, Tab "I").

[87]         The petitioner cashed these in post separation to support herself while she was without personal items or household effects and on EI as a result of an injury which occurred during the marriage.  While she received $3,689.47, the last valuation was $3,922.78, discounted to $2,746.  This was a matrimonial asset subject to division.

[88]         As of January 28, 2011, TD Trust advised that the respondent had an RRSP market value as of April 30, 2009 in the amount of $64,584.08 with a corresponding line of credit balance as of April 30, 2009 of $5,253.80. 

[89]         As of August 31, 2010, the RRSP market value was $55,745.61, with a corresponding line of credit balance as of August 31, 2010 of $32,152.55.

[90]         This discounted valuation is used in the petitioner’s submissions and I have accepted this valuation.

[91]         The letter did not identify specific account numbers.  It appears during the month of March 2011 the respondent withdrew a total of $34,174.30 from the RRSPs, with $3,417.43 remitted to Revenue Canada, and a balance of $30,756.87 applied to his line of credit number ending -5371, leaving a balance owing of $4,034.80 on the line of credit.

[92]         The respondent has also provided a letter from his financial advisor as of April 28, 2011 regarding a mutual fund RRSP.  I assume this is the same RRSP as that referred to in the advisor's letter dated January 28, 2011. 

[93]         The respondent also has a LIRA.  The respondent's post trial submissions included a December 15, 2011 letter from Canada Trust indicating that the balance in his LIRA account number ending in -0025 was $3,117.87.

[94]         The RRSPs capable of precise identification by the petitioner have been included and divided as per her submissions.

[95]         The RRSPs have been discounted in the petitioner’s calculations by 30%.

[96]         The respondent has not provided precise calculations.  I accept the petitioner’s figures.

[97]         I have divided these RRSPs and investments because of the evidence that the debts of the respondent were paid out of the joint account to the petitioner's disadvantage, yet he retained the benefit of his assets to pay down his debt.

[98]         Since separation, the respondent has retained the home and most of the household possessions.

[99]         With respect to the division of property and the matrimonial home, the respondent has not provided evidence that would justify an unequal division. 

[100]     The presumption is for an equal division and the balance of the proceeds, after these lump sum adjustments have been undertaken, shall be equal division of the proceeds subject to the equalization payments.

CONCLUSION

The Matrimonial Home

[101]     Both parties are indicating their consent to sell the home.

[102]     Without court order the respondent is unlikely to place the home on the market and move toward sale in a reasonable period of time.

[103]     The home is to be put on the market no later than March 31^st.

[104]     The petitioner shall arrange to have the sale effected through her work to obtain the reduced realtor rate of 4.85%.  She shall be entitled to retain a realtor without need to consult the respondent, given his failure to respond to reasonable requirements to have the home assessed and to agree on a realtor.

[105]     The realtor and the petitioner shall be entitled to enter the home without the presence of the respondent in order to confirm the condition of the home.

[106]     Should the respondent wish someone to be present on his behalf, he may do so, although he must confirm with the petitioner in advance the name of that person.

[107]     In the event the respondent wishes to undertake the repairs suggested (carpet cleaning and painting), he shall have ten days from the date of this decision to complete these after which the petitioner may hire a painter and cleaner.  The cost of same shall be considered a reasonable disbursement paid for out of the proceeds of sale.

[108]     Should the respondent wish to buy out the petitioner's interest, he shall do so with her consent before March 31^st.  Thereafter, the home shall be sold as directed.

[109]     Pending sale, the respondent will continue to keep the home maintained and pay the mortgage and associated expenses.  Failing that, the petitioner may apply for an exclusive possession order to effect the sale.

[110]     The parties will cooperate with recommendations of the realtor in terms of the listing and price.

[111]     The respondent will cooperate with all reasonable recommendations and make the home available in accordance with the realtor's directions for any open houses and viewing.  Again, should the respondent fail to do so, the petitioner may apply to the court for an exclusive possession order pending sale.

[112]     The net proceeds of the sale shall be held in escrow pending agreement on the same, subject only to the direction of the court with respect to lump sum payments.

Household possessions

[113]     The evidence confirms that the respondent retained the vast majority of personal possessions in the matrimonial home (Exhibit 5, Tab "P").

[114]     This includes almost all furniture and all major appliances in the home, except an armoire and side table, major electronics, tvs, surround system and dvd. 

[115]     The petitioner's statement of property (Exhibit 6) is the first valuation of the petitioner, suggesting as of September 15, 2010 the contents of the household at $20,000, including new furniture and appliances purchased as of the date they occupied the new home in 2009.  This valuation excludes the motorcycle, ATV and cars.

[116]     The statement of property at Exhibit 20 is the respondent’s estimation of contents at $3,000 as of July 8, 2011.  This is clearly an undervaluation.

[117]     The bedroom furniture was purchased for $5,000 and subsequently valued by the petitioner at $4,000, accounting for depreciation.

[118]     The appliances were all new in December 2009 and bought on the line of credit.  The petitioner values these at $2,000.

[119]     The petitioner valued the generators at $1,500.  The snow blower, purchased for $1,200 on the respondent's Sears card, was sold by him for $600.   He has subsequently paid this off with joint funds.

[120]     Exhibit 5 Tab "0" itemizes household contents at a value of $26,000, excluding the motorcycle.

[121]     In her final submissions, the petitioner values the items left in the home at $10,800, a more realistic value.

[122]     The respondent has not addressed this estimate or provided information that would assist the court further in this regard. 

[123]     The major appliances and furniture were purchased at the time the parties moved into the matrimonial home between December 2009 and January 2010.

[124]     The parties' snow blower was sold for $600 by the respondent post separation.

[125]     I accept a value of $10,800.  The respondent has sold some larger items without consultation or justification as to price relative to purchase price.  The larger items in the garage, like the sea doo and the snow blower, were sold simply, he indicates, to pay down his debt.

[126]     Given the petitioner has a few items already and seeks the return of her heirlooms, she shall be entitled to one-half of the $10,800 reflecting her share of the items remaining in the house.  I cannot conclude that the larger items were included in this price; however, the valuations for appliances and bedroom furniture, while relatively new, may not be realistic. 

[127]     In addition, there are personal items that the respondent must return to the petitioner forthwith.  These are her silver jewellery, wedding dress, square solid wood coffee table, antique side table (an heirloom), the CD collection, her Christmas ornaments and decorations as described at Exhibit 5 Tab "O" and the dresser in the spare room (solid wood, stained dark chocolate colour).

[128]     Failure to returns these items to the petitioner within 10 days of the date of this decision shall result in a cost of $1,000 additional to what is ordered herein, payable by the respondent to the petitioner.

[129]     The respondent has a defined contribution pension plan with his employer.   The petitioner shall have an entitlement to one-half the benefits from the date of cohabitation to the date of separation.  The petitioner may effect such security against this pension plan to ensure she is paid if and when the respondent leaves this employer, either through retirement or termination of employment.  The respondent shall sign whatever documentation as is necessary to protect her entitlement.

[130]     The largest portion of this pension value was accumulated prior to their very short relationship.  An equal division of the respondent's pension benefits is not justifiable.

[131]     Thus, while the respondent did not disclose all his assets, nor did he distinguish what he brought into the marriage, what is clear is that he used joint funds to pay down indebtedness in his name and left the petitioner without access to funds and with her debt intact.

Deductable car debt

[132]     The petitioner was in a car accident in the fall of their relationship.  The deductible for this was $500 paid for by the respondent.  This is a joint debt.

Line of Credit

[133]     The line of credit was a joint debt at separation as of August 31, 2010 in the approximate amount of $32,153 (Exhibit 32).

Exhibit 19 - Debts

[134]     The respondent submitted a list of indebtedness which he admits are largely his responsibility including the government debt for recalculations regarding his Truro home.  The petitioner has been independently assessed and had her own debt in this regard.

[135]     The respondent admits the American Express, Sears Mastercard and TD Visa are also his debts, most of which are post separation debts.

[136]     There is some evidence that driveway costs are included in the line of credit.

[137]     There is an intermingling of their funds, the debt payments and the joint account.

CIBC (Petitioner)

[138]     The petitioner has submitted post separation debts for which she wishes compensation.

[139]     The petitioner's CIBC Visa was a joint debt.  The balance was $5,812.23 before the August 26, 2010 bill.  Between August 26 and September 25, 2010 there were payments and further debits.  Most of those debits were hidden from the view of the reader except for approximately $1,387 in services relating to hotels and food and expense costs necessarily incurred by the petitioner in the transition after separation.

[140]     I have allowed these expenditures, resulting in a total CIBC debt for the purposes of this division of $7,199.32.

[141]     The petitioner left the home without her personal possessions, had no personal or household belongings and had to escape due to her fear of potential domestic violence.  She paid hotel bills, purchased necessities of life, etc. until she could reestablish herself.

[142]     Having included this debt in the division, I decline to award spousal support to cover her transition costs.

[143]     I have divided the household possessions equally.  I have, therefore, disallowed her post separation furniture purchases with the Brick and other post separation purchases except as necessary to compensate her for living expenses.

[144]     Except for the work pension the matrimonial assets and debts have been divided equally. 

[145]     The petitioner shall be compensated by the respondent for the following costs.

Medical /Out of Pocket Expenses

[146]     The petitioner did not have her own medical/dental plan when she suffered her injury during the marriage.  Although the respondent was formally advised by her counsel not to remove her from his benefit plan and this issue was identified in the pretrial organization conference, he did remove her from his benefits plan.

[147]     As a result, the petitioner is out of pocket for items that would have been covered by the dental plan.  This has been itemized and proven in her documentation.

[148]     These costs are prescription drugs at $372.35 and chiropractic services at $475.

[149]     The respondent shall be responsible for paying $847 to the petitioner to compensate her for these prescription and chiropractor expenditures.

Spousal support

[150]     Due to the circumstances of her separation, the petitioner was required to obtain hotel accommodations and food to sustain herself in the immediate transitional period between August 26 and September 13, 2010 when she moved in with her sister.  She had intervening medical costs.  She recommenced work at a higher salary in March 2011.

[151]     Once these transitional costs have been covered, there is no entitlement and no need for further compensation by way of spousal support. 

[152]     The petitioner was self-sufficient before the marriage and as of March 2011 is now once again self-sufficient.

Canada Child Tax Benefit

[153]     During the marriage the family received the child tax credit.  The cheque was, of necessity and with the consent and knowledge of the respondent in the name of the petitioner.

[154]     After separation, the respondent claimed back payments directly from Revenue Canada.  His evidence was that he never saw the cheques come into the house.

[155]     As a result, the petitioner was reassessed in the amount of $726.60.  Her practice was to deposit the cheque into the joint account out of which the respondent's debts and their joint debts were paid.  His claim that he did not receive the benefit of this money while his son lived with him is not believable.

[156]     The respondent shall forthwith compensate the petitioner for this amount of money so she may satisfy her reassessment.

[157]     Between the evidence and the submissions, I make the following valuations:

-  The pension accumulated between the date of commencement of the relationship (cohabitation) and the date of separation will be divided at source.

-  The home will be sold and the equity initially divided equally with the proceeds held in trust to be distributed according to this order.

[158]     For the respondent’s information, he shall be responsible for paying the line of credit, the expenses on the leased vehicle and the deductible.

[159]     The petitioner is responsible for the CIBC balance, the expenditures she paid on the leased vehicle and Sears.

[160]     Each have been given credit for that portion of the debt which was rightfully the responsibility of the other party in the equalization chart above.

[161]     Should the other party be called upon to pay the indebtedness other than in a manner set out above, they shall be indemnified by the responsible party.

[162]     Equalization payment from the respondent to the petitioner is $16,826.

[163]     To the extent that there is equity from the sale of the home, the petitioner shall receive her one-half share.  In addition, the amount of the respondent's share shall be used to pay down his debt to the petitioner, as much as possible, in accordance with this equalization award and the additional award regarding the medical bills and the Child Tax Benefit in the amount of $1,574.

[164]     Likely there will be a balance he will still owe to the petitioner. 

[165]     This shall be paid forthwith.

[166]     The parties shall execute all documentation necessary to effect the directions set out in this decision and shall be entitled to return to the court in the event this is frustrated.

[167]     Counsel for the petitioner shall draft the order.

Legere Sers, J.