The head of a Northern Ontario children’s aid society was told five months ago that his agency’s lawyer stated in court documents in an ongoing sexual abuse lawsuit that a 14-year-old girl is not a child but a “sexually mature young woman,” the Star has learned.
Bill Leonard, executive director of Kenora-Rainy River Districts Child and Family Services, acknowledged to the Star this week that the plaintiff in the case had contacted him last October over the statement.
He also acknowledged that he had seen the statement referenced in a January 2019 ruling from the case.
The Toronto lawyer who made the statement in a July 2018 affidavit, Gary McCallum, continued to be retained by Leonard’s agency until this week. On Monday, after the Star published a story about the “sexually mature” statement McCallum made in his affidavit, Kenora CFS fired him and called his statement “intolerable.”
The case has attracted criticism and condemnation of both McCallum’s statement and of the children’s aid society’s handling of the case.
“This is not the first time — when we see what’s happened in Kenora — that the standards that should be in place have not been met by our child welfare system. That is why we will bring in robust legislation to hold the children’s aid societies of this province to a higher standard.”
McCallum’s statement was made in an affidavit filed as part of an ongoing civil case in which a woman is suing the Kenora CFS, claiming she was sexually abused by her foster father as a child while under the care of the agency’s predecessor organization.
In responding to an affidavit filed by the plaintiff’s lawyer, McCallum said in his own affidavit:
“A fourteen or fifteen (girl) is a sexually mature young woman. Not a ‘child,’ as the term is generally understood.”
Ontario’s Child and Family Services Act, which governs children’s aid societies, is clear: a child is a person under the age of 18.
In a statement this week, the woman’s lawyer, Simona Jellinek, said her client wrote to Leonard at Kenora CFS directly last October after seeing McCallum’s statement in the affidavit.
“After much reflection and heartache, my client wrote to Mr. Bill Leonard expressing her shock at being called a sexually mature 14 or 15 year old woman by (Kenora CFS) counsel in recently filed court documents regarding the upcoming motion. She demanded an explanation from him,” Jellinek said.
“Much like when she was a child and disclosed the rape, my client received no immediate acknowledgement that she was wronged. In fact, Mr. Leonard did not respond to my client. Mr. Leonard forwarded my client’s email to (Kenora CFS) counsel. On Oct. 30, 2018, I received an email from agency counsel that confirms Mr. Leonard’s receipt of my client’s email with a request that my client not contact the (Kenora CFS) directly.”
In an email, Leonard confirmed to the Star he recalled reading the woman’s letter and being “troubled” by its contents.
“I was puzzled because the letter attributed the disturbing comments to a July 2018 affidavit filed by our office, but I was unaware of such statements being included in the July 2018 affidavit,” he said. “As is normal practice when a case is before the courts I referred the letter to my lawyer with the expectation that he and the plaintiff’s lawyer could bring clarity to the matter of what specifically our affidavit stated.
“I was unaware that the offensive statement was included in the filed affidavit. And in fact the copy of the July 2018 affidavit that I have on file does not include the offending comments. When I found out (Monday) the actual affidavit filed with the court did include the disturbing statements I terminated my lawyer immediately.”
McCallum told the Star Wednesday in an email that Leonard’s account that he saw a different affidavit than the one filed in court is “correct.” He did not immediately respond to a followup question.
Leonard also confirmed that he did see the “sexually mature” statement again, this time in a January 2019 court ruling from the ongoing lawsuit.
“I did read it, but the judge appeared to be commenting on ‘live issues’ on both sides and as procedural matters. Without the knowledge of what was in the affidavit before the court, I think the full significance of her comment may not have been understood at the time,” he said.
Jellinek said in an email to the Star that 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 … One questions why Mr. Leonard waited so long to take proper and immediate action regarding this offensive position.”
Jellinek also pointed out that McCallum’s co-counsel, Harvey Stone, remains the case. Stone was the lawyer who actually argued the motion in court, which relied on McCallum’s affidavit as the children’s aid society’s position, Jellinek said.
“At no time, either prior to the hearing or at the motion itself, did Mr. Stone take issue with the statement and request that the reprehensible statement be struck from the affidavit as would have been the proper way to handle such an issue. Rather, he chose to allow the court record to reflect (Kenora CFS’s) position that my client was a sexually mature young woman.”
Stone declined to comment to the Star. When asked if Stone will be remaining on the case, Leonard said “I am looking into the whole matter.”
Jacques Gallant is a Toronto-based reporter covering legal affairs. Follow him on Twitter: @JacquesGallant