A 14- or 15-year-old girl is not a child, but rather a “sexually mature young woman,” according to a lawyer for a Northern Ontario children’s aid society.

The statement by Toronto lawyer Gary McCallum is contained in a July 2018 affidavit in an ongoing civil court case, in which a woman is suing Kenora-Rainy River Districts Child and Family Services, claiming she was sexually abused as a child by her foster father in the 1980s while under the care of the agency’s predecessor organization.

It was again referenced in a January 2019 ruling from the lengthy case, which is playing out in a Toronto court.

The statement has been described to the Star by other lawyers and a professor of social work as “offensive,” “shocking,” and “appalling” — doubly so because it was made by the lawyer for the very agency charged with protecting the most vulnerable children.

“This is outrageous,” said Melissa Redmond, assistant professor of social work at Carleton University. “You represent the organization that is responsible for protecting children in this community, protecting children from exactly the sorts of horrific circumstances that this child found herself in.”

Redmond, whose research interests include child protection policy, said she can’t understand why there have not been consequences for the statement. “I don’t understand how this is in the public record and (Kenora CFS) have not been seen to distance themselves as quickly as possible and to talk about how they value the children in the community and the children they have served in the past.”

Read more:

Child luring convictions may be overturned following Supreme Court case, lawyer says

Man from London, Ont., facing sexual exploitation, child porn charges

Police overwhelmed by rampant, ‘hidden evil’ of child exploitation online

Ontario’s Child and Family Services Act, which governs children’s aid societies, is also clear. “‘Child’ means a person under the age of eighteen years,” it reads.

Kenora CFS refused to say when it became aware its lawyer had made the statement, but told the Star this week it disagrees with McCallum and called his position “inaccurate.”

The agency also refused to say whether it plans to rectify the statement in court.

McCallum declined to comment to the Star, saying in an email that “I will not be making any statements on matters that are currently being litigated and I will not be making any statements inconsistent with those of my client.”

The statement is part of a voluminous court record that stretches back years. It appears in a July 2018 affidavit in which McCallum states he is responding to the affidavit of the plaintiff’s lawyer, Simona Jellinek, which McCallum said is “rife with errors, imprecisions, and misrepresentations.” (Jellinek declined to comment to the Star.)

“She states that the alleged assaults took place while the plaintiff was ‘in childhood,’” McCallum states before noting that the plaintiff’s year of birth indicates she would have been about 14 or 15 in the early 1980s.

“A fourteen or fifteen (sic) girl is a sexually mature young woman, not a ‘child,’ as the term is conventionally understood,” McCallum states.

The statement is again referenced in a January 2019 decision by Superior Court Justice Jessica Kimmel, who ruled that the plaintiff’s action could proceed. In her decision, Kimmel makes no comment on the statement itself, other than to say it was identified as a “live” issue by McCallum surrounding the allegation of sexual assault.

As other lawyers have pointed out, McCallum’s position — which has now been in the public record for about eight months since the affidavit was sworn in July 2018 — is effectively the agency’s position, as he is acting for it in court.

“He’s speaking on behalf of a children’s aid society, so it’s deeply concerning that there’s a children’s aid society out there that takes the view that youngsters of 14 or 15 are sexually mature,” said lawyer Loretta Merritt, whose practice is almost exclusively focused on representing plaintiffs in civil cases involving sexual abuse.

“If that’s their view, the view of an organization charged with responsibility for caring for vulnerable children, then that’s deeply concerning to me.”

Kenora CFS executive director Bill Leonard told the Star in an email exchange this week that he can’t really comment as the court case is ongoing.

Loading... Loading... Loading... Loading... Loading... Loading...

“Mr. McCallum’s statement is before the court and as you point out, it has been before the court for some time,” he said. “But to be clear my agency does, and always has, considered 14 and 15 year old young persons to be children as defined by legislation and as such are deserving of our full protection from any form of abuse.”

It’s “disappointing” if Kenora CFS didn’t know at the time that their lawyer had made such a statement in court, said Allen Wynperle, president-elect of the Ontario Trial Lawyers Association, which represents lawyers acting for plaintiffs.

“I would have hoped that they would be aware of the comments that their lawyer is making, and certainly if they weren’t, that’s a problem and a concern,” he said. “But certainly now that they are made aware of it, what are they going to do about it?”