Age Inappropriate
The Toronto Star reported on recent allegations filed by the Law Society of Ontario
While representing a children’s aid society in a sexual abuse lawsuit, Toronto lawyer Gary McCallum stated in court records in 2018 that a 14- or 15-year-old girl is not a child, but a “sexually mature young woman.”
He is now facing discipline proceedings over that statement, according to a notice filed this week by Ontario’s legal regulator.
As first reported by the Star in March 2019, McCallum made the comments in an affidavit filed in court the previous year, as the lawyer representing Kenora-Rainy River Districts Child and Family Services in the lawsuit.
Given that he was their lawyer, McCallum’s position was effectively the children’s aid society’s position, legal experts pointed out.
Amid outrage from the public and provincial government, the agency fired McCallum about a day after the Star’s story was published, saying his statement was “appalling and intolerable.”
Kenora CFS initially refused to say when it became aware that McCallum was advancing such a position in court on its behalf, only to later acknowledge it learned of McCallum’s statement months before the Star published its first story.
McCallum is now facing an allegation of professional misconduct before the Law Society Tribunal. A notice of application filed this week alleges he “failed to act honourably and with integrity” when he made the statement in the affidavit.
A hearing date has not yet been set. McCallum did not return a request for comment Friday.
The lawsuit was brought by a woman alleging she was sexually abused as a child by her foster father in the 1980s while under the care of the children’s aid society’s predecessor organization. McCallum made the statement in a July 2018 affidavit responding to an affidavit from the plaintiff’s lawyer, Simona Jellinek.
“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 stated.
Ontario’s Child and Family Services Act, which governs children’s aid societies, is clear that a person under 18 is a child.
“The fact that the Law Society is taking this kind of conduct seriously and is pursuing disciplinary charges is a very important step toward recognizing the irreparable harm that was done to my client, and sends a clear message that such conduct is not to be tolerated,” Jellinek said Friday.
After the Star published its story in 2019, Ontario’s then-Minister of Children, Community and Social Services, Lisa MacLeod, said she was “disgusted” by McCallum’s statement and “embarrassed” that a lawyer acting for a children’s aid society would say such a thing.
Jellinek said at the time that the Kenora agency’s executive director Bill Leonard “had various opportunities” to investigate McCallum’s statement, but did not.
“Mr. McCallum’s retainer was terminated only after the Star published this story,” she said in 2019. “One questions why Mr. Leonard waited so long to take proper and immediate action regarding this offensive position.”
When first contacted by the Star in March 2019, Kenora CFS refused to say when it became aware that McCallum had made the statement, nor whether it planned to rectify it in court, other than to say it disagreed with his “inaccurate” position.
After the agency fired McCallum, Leonard said the first time he saw the July 2018 affidavit was when the Star sent it to him for comment in 2019.
Several days later, Leonard acknowledged that the plaintiff had contacted him about the statement in October 2018, and that he had also seen the statement quoted in a court ruling from the case in January 2019.
Leonard said he was “puzzled” after reading the plaintiff’s letter, given that the July 2018 affidavit that he had on file did not contain the “sexually mature” comment.
McCallum told the Star in an email in 2019 that Leonard’s account that he saw a different affidavit than the one filed in court is “correct,” but did not provide further details.
(Mike Frisch)