[1] The defendant, Patrick Dumont, applies for an order to vary the terms of the Separation Agreement between the parties, specifically so that primary residence of the child, Karighan Dumont, be with him and further that there be a cancellation of all child support payments payable to the plaintiff, Kim Dumont. Further the defendant seeks a cancellation of arrears of child support which have accrued to date.

[2] The parties were married in November 12, 1995. They each had a child from a previous relationship. The child, Karighan, was born in January, 1996 and is now 51/2 years of age. The husband worked for Overwaitea Foods as a general clerk and also held a partnership interest in a travel agency. The wife worked as a fitness instructor and personal trainer.

[3] They separated in July 1998. On April 12,1999, Master Nitikman awarded interim child support of $368 per month. In September 1999, after both parties sought independent legal advice, the parties executed a Separation Agreement in which it was agreed the parties would have joint custody of the child, with the child to primarily reside with the wife. It was further agreed the husband would have liberal, generous and specified access to the child including from 6:30 pm on Thursdays until 6:30 pm on Saturdays, as well as other vacation periods and special occasions. Based on a total gross annual income of $45,690 in 1998, it was agreed the husband would pay child support of $391 per month.

[4] In approximately April 2000, the husband stopped work at Overwaitea by virtue of a physical disability, that is osteoarthritis of his right ankle. His application for short-term disability was initially rejected. However by May, 2000, his application was accepted, resulting in him receiving benefits equivalent to 60% of his gross monthly salary.

[5] In August 2000 the wife applied for a divorce. As I understand it, in support of the Order, she filed a Child Support Fact sheet which referenced the separation agreement as well as the earlier interim order of Master Nitikman.

[6] In November 2000, the wife applied for a Divorce Order pursuant to Rule 18A. The husband made cross applications for several orders-namely that the wife's claim for spousal support be dismissed; that the wife's claim for a division of assets be dismissed and that there be a reduction of child support and a cancellation of arrears. On December 1, 2000, Cole J. granted the divorce order by consent and adjourned the applications for the balance of the relief for one week, pending the production of certain documents.

[7] On December 8, 2000, the balance of the applications were heard by Warren J. The wife's claims for spousal support and a division of assets were dismissed by consent. Relying on his disability and receipt of short-term disability benefits, the husband submitted there had been a change in circumstances and that the child support payments ought to be reduced and the arrears cancelled. While the earlier divorce order made no reference to child support, Warren J. treated the application as one to vary the order or alternatively, to vary the separation agreement.

[8] Warren J. dismissed those applications, holding:

[9] Finally, Warren J. noted that the husband had 88 sick days banked. He held that the husband was obliged to encroach on that sick day bank in order to meet his financial obligations. On this basis, he noted:

[10] The husband's application to vary the terms of the separation agreement was renewed on June 25, 2001, some 61/2 month following Warren J's order. In support of his position there has been a change of circumstances, the husband notes that his application for long-term disability was confirmed in January, 2001, retroactive to November 2000. Further he deposes that he has been unable to find any alternative employment to replace his income stream, thus leaving him with no income other than the long-term disability benefits.

[11] On a review of all of the material, I am not persuaded there has been any material change in circumstances, nor (as Warren J. directed) that the husband has "exhausted all reasonable efforts to find employment to replace the amount by which his income has been diminished."

[12] The medical reports in support of the confirmation of his long-term disability application are the identical reports which were before the Court in December 2000. Those reports confirm that notwithstanding his disability, the husband is able to work, albeit with certain restrictions, for 8 hours per day, 5 days per week, performing essentially sedentary work. (see Work Activity Restriction reports, Ex. A, aff'd of Patrick Dumont, August 24, 2001).

[13] In its letter of January 26, 2001 addressed to the husband, Sun Life Financial (the disability insurer) notes that "The medical information on file indicates you may be able to participate in a return-to-work program with limitations and restrictions. If you have not yet done so, please contact your employer to discuss accommodation of your physician's restrictions."

[14] Further in its letter of May 16, 2002, the insurer confirms the extension of the long-term disability benefits for a further period. It notes:

[15] There is very little information in the affidavit material concerning any efforts made by either the husband or the employer to address the issue of accommodation of his disability. Regarding this issue, the husband's affidavit sets out an extensive description of the provisions contained in the collective agreement concerning the employer's "duty to accommodate", where an employee with a permanent disability is retrained for re-entry into the workplace. He notes that he has "made every effort to expedite the process by following the direction given to me by the company and the union", although there is no indication of what that direction might be. Further he states:

[16] In the course of submissions, I pointed out what I considered to be a deficiency in the material, that is the absence of any information to detail precisely what the husband is doing either alone or in concert with the union and the employer to pursue this accommodation policy, beyond waiting on the sidelines.

[17] Mr. Russ consulted with his client and advised that indeed there was some new development-specifically that the husband's employer, the store manager and a union representative would be meeting on September 21, 2001 to discuss Overwaitea's proposal that the husband return to work for an 8-hour work day, broken into four 2-hour blocks. Those blocks would require 2 hours of cash training, 2 hours of writing up orders, 2 hours of scheduling and 2 hours of work in the bulk food department. As I understand it, the first three categories of work are all sedentary work, presumably falling within the Work Restriction Report Guidelines. If the husband returns to work on this accommodation program, he will resume work at the same hourly rate as originally paid.

[18] While none of this latter information is contained in the affidavit material, I will accept it for the purposes of the application. Assuming the proposal is accepted by the husband (and there was no suggestion on his part it was unacceptable on its face), he may well be back to work in the new future, earning his original wages. In that case, this application will be without foundation, except possibly as regards the cancellation of any arrears which have accrued. Accordingly, I consider this application premature and I dismiss it with liberty to renew the application at a later date.

[19] In closing, I should note that even if the accommodation proposal cannot be achieved, the fact still remains that the husband is indeed employable. He is a young man of 40 years, he has a wealth of experience in the food industry as well as the travel industry, and apart from his reluctance to part with his benefits package, there is no good reason he should not be pursuing other lines of work. Nor is there any evidence of any efforts made to retrain. The only job application he refers to is his recent application to become the Manager of Administration at the local Overwaitea store. There is no evidence to support the conclusion that this was a reasonable course of action, that is whether he has the requisite managerial and office skills to perform such a job or whether any retraining is required to successfully pursue such areas of employment. If this application is to be renewed at a later date, much more detailed supporting evidence is required.

[20] Finally, as regards the application to cancel arrears, I also find the application is premature. At present arrears apparently stand in the order of $1,774.91, representing some 41/2 months of child support plus interest. As Warren J. noted in his earlier Reasons, such an application cannot be pursued until the husband has at least exhausted all means of meeting his obligations, including an encroachment on his 88 banked sick days. His affidavit material in no way addressed this matter.

[21] The application is dismissed with costs to the wife.

"M.E. Boyd, J."
The Honourable Madam Justice M.E. Boyd