"Law, in Western democracies, complex, secular societies, plays a really significant role in all kinds of issues and problems. Whether it’s the environment, global warming, COVID-19, or intergenerational trauma, it has an effect."
Nicholas (Nick) Bala has been a Professor of Law at Queen's University in Kingston, Canada since 1980, focusing his work on issues related to children and families involved in the justice system. Much of his research is interdisciplinary, and he has undertaken collaborative projects with psychologists, social workers, criminologists and health professionals. He has published extensively and his work is often quoted by all levels of court in Canada, including the Supreme Court of Canada, and has also been cited by courts in the United States, Britain, New Zealand, Singapore and Australia. Professor Bala was elected a Fellow of the Royal Society of Canada in 2013, and in 2019 became a Distinguished University Professor at Queen’s University.
SWY: As one of Canada’s leading family law scholars, you have had a great impact on our community’s understanding of the relationship between the law and domestic disputes. Can you please describe your experience working with cases of childhood abuse and intergenerational trauma? What inspired you to enter this field?
NB: I have a broader approach to family law than some other scholars. For many that teach or write about family law, it means that they write about divorce law, separation, unmarried cohabitation, same-sex marriage, etc. These are all very important, and I do a lot of work in those areas, but I have also done work in the issues of child welfare and child abuse, child witnesses in the criminal courts, and young offenders; these are all issues that also affect children, family, parents, and involve the justice system. So, I have a broad vision for what constitutes “family law”. One child in one family may be involved in more than one part of the legal system at a time, and indeed, there are also questions now about seeking monetary compensation for childhood abuse, which is another system, a civil or tort system.
How did I get interested? Part of it, I’m sure, was my parents were survivors of the Holocaust. They lost many relatives, including my half-brother and half-sister who were killed at Auschwitz. Growing up in a household where that was the history of the family had a profound effect. There is literature on children of the Holocaust; children like myself who were born after World War II, in the 40s and 50s, whose parents were survivors of the Holocaust, and what the emotional toll on the family life was. This story is both somewhat different from many other situations of trauma or abuse, but also has that kind of resonance. I’m sure that’s part of the reason why I got interested in both the role of children and the need to protect children who are having trouble.
When I was a young adult, I was involved in various recreational programs, day camps and so on for children who had issues of abuse and neglect. When I was at Queen’s as a student in the 70s, I was involved in Camp Outlook. It’s a program that still exists that takes children and adolescents that have various social disadvantages out camping, especially children involved with Children’s Aid Societies and group homes. It’s sort of like Outward Bound. At the very least, it has recreational value, but I think it also has social value. It’s one of many kinds of programs that Queen’s students get involved with, and I had done similar things elsewhere before coming to Queen’s. In law school, I think I was inspired by some of the teachers to develop an interest and understanding of children and adolescents who are involved with the legal system. One of my professors was George Thomson, who was a family court judge in Kingston, and that was very influential. I did also work at a law firm that was involved with child protection cases, but I’ve mainly been in teaching and research since the 1980s. I’ve also been involved in issues of law reform and social and political advocacy, always collaborating with others. When you talk about social and legal change, something like changing the laws about child witnesses in the criminal courts, which I think was an important set of developments I was involved with, it’s certainly not just me. It’s me and many other psychologists, lawyers, and crown prosecutors, all kinds of people involved. So that’s an interesting part of my career, the extent that I’ve been a bit of an activist.
SWY: How has the legal system changed over the years to better serve individuals experiencing domestic violence? What do you think needs to be done going forward?
NB: Many issues are interrelated. Perpetrators of domestic violence, who are often men but not infrequently women, they were often abused as children or grew up in homes where there was a lot of domestic violence. There is this strong, intergenerational effect of domestic violence. People who are abusing their partners are also often abusing their children, so there’s a pretty strong relationship there. I would say, in many of these areas that I’ve been working, we have seen significant change in how the legal system responds over the past 40 years. We have seen reforms, a more effective justice system, better trained professionals, and more influence from mental health professionals on how issues are understood and dealt with. It’s encouraging to note that, not just in Ontario or Canada, but internationally, we have seen these changes. Different changes at different times and much more progress in some countries than in others. We have also seen changes in the recognition of the rights of women and their treatment in society, including in the legal system. We have seen reductions in Canada in rates of child abuse, and child sexual abuse in particular. Reductions in rates of domestic violence, and reduction in rates of juvenile offending; all of which are related.
That definitely does not mean everything is fine though. There remain enormous challenges. It’s like peeling back an onion; we deal with some problems and then we realize that there are more problems that we weren’t dealing with. In particular, one of the examples is, when I went to law school in the 1970s, we learned about issues related to children and youth from disadvantaged economic and social backgrounds, but we did not learn about the specific issues of Indigenous children. Now we recognize that Indigenous children have faced enormous challenges of trauma that have dramatic intergenerational effects and have resulted in troubling social problems and we’re trying, as a Canadian society, working with Indigenous peoples, to respond to them. Canada, in my view, very socially appropriately has taken in fairly large numbers of refugees from other countries. Socially, this is a very good thing, but we don’t realize that some of these refugees were children who were either born in refugee camps or were born in Canada to people who survived civil wars in places like Somalia, and are deeply traumatized. So, we’re seeing intergenerational effects there as well. We have old problems and challenges, as well as new ones.
SWY: What do you feel is frequently misunderstood about family and children’s law?
NB: One of the things is that it doesn’t get enough recognition and support in universities in North America. Family law is at the bottom of the academic hierarchy in law schools. Queen’s is something of an exception. Family law and children’s law are given more due weight than other law schools, but this is an ongoing issue everywhere in Canada. For example, last year, there were budget cuts in all Ontario universities and many law schools cut their children’s law course; many other law schools have never had a children’s law course. It’s a concern that family law is not given the attention it deserves because it’s viewed as an emotional and complicated social problem. Although law graduates do have successful and rewarding careers in this area, it’s not an area where you have the kind of incomes of people doing mergers and acquisitions law.
One of the things that makes family law really interesting to teach is the profound effect it has on everyone in society. In most law school courses, most students say, “Oh this is interesting, I wonder if I will practice in this area and what I will do for my clients,” whereas in family law class, we are doing that and people are also thinking, “Oh yeah well this happened to me too.” The emotional resonance is more profound. For people that went through things in childhood, reading about it and talking about it in class can also set off different feelings. For example, recognition of same-sex marriage was a huge issue everywhere for a while. When that issue came up in family law as a topic of debate, of course it hit an emotional nerve in a way that sitting around talking about property law would not. People in property law would be like, “Oh this rule doesn’t make sense, oh I don’t like it, etc.,” but with this topic, people really feel that this is my rights, my oppression. They understandably get a lot more engaged. It’s not just family law too; issues around Indigenous law, racial discrimination, sexual assault in a criminal context also affects students. Those classes tend to be a lot more heated than some other classes, and in the end, that makes it more interesting and worthwhile to teach. I also teach first year contracts, and I really enjoy teaching the first year students, but people don’t get too worked up about different types of legal rules compared to family law.
In the court systems, there also tends to be a lot more emphasis on criminal law and getting criminal cases decided quickly than there is for family cases. There is now a constitutional requirement that criminal cases are heard within a certain time period or else the charges are dismissed. Because the government doesn’t want to lose any of the criminal cases on the ground of delay, we keep putting money into them, but this isn’t true for family cases. Lack of prioritization of family cases is an issue. Family courts are often the poor second-cousin of the court system.
SWY: From a legal perspective, what do you think is something that every person experiencing or who has experienced childhood abuse should know? What legal supports are available to survivors?
NB: The answer is very contextual. It’s different if you’re 12-years-old being abused by your parents, 15-years-old being abused by a teacher, or 30-years-old being abused by your partner. They’re practically different legally. For certain groups in certain contexts, there may be financial compensation. We have a tort system, so someone could sue the abuser or the institution where the abuse occurred, for example a school or a juvenile correctional facility. We also have the Criminal Injuries Compensation Board, which is an area where there is limited compensation compared to civil suits, but it’s something that can be done relatively easily. We have law students at Queen’s working at the Queen’s Legal Aid Clinic, under a lot of supervision, working with survivors of abuse and domestic violence in making claims to the Criminal Injuries Compensation Board. When suing someone and getting a monetary judgment, if it was your partner that abused you, they may well have no resources and be in jail, but the Criminal Injuries Compensation Board may provide some compensation. Although there is no one thing for all survivors of abuse, the general point is to be aware that there are legal things that can be done, whether that be calling the police, getting compensation, or getting possession of your home. There is a range of different ways of getting redress. In absolute terms, the amounts are limited, but what they can be significant for is to fund therapy.
"Although there is no one thing for all survivors of abuse, the general point is to be aware that there are legal things that can be done, whether that be calling the police, getting compensation, or getting possession of your home. There is a range of different ways of getting redress."
SWY: Family law differs from other areas of the law in that it deals with the most intimate parts of someone’s everyday life. What advice would you give to family lawyers working with survivors of abuse and trauma? How do you think those in the legal profession can play a role in supporting individuals who have experienced childhood abuse?
NB: One of the things that I talk and write about more now than I did when I started my career as a professor is it’s important for lawyers to consider their ethical obligations in a broad way; let’s say you’re a divorce lawyer representing a parent in a divorce case, it’s also important that as a lawyer for a parent, you also realize your ethical obligation to their child. You have an obligation to promote the interests of the child, as best you can, in the context of that family dispute. This often means working with parents to try and understand the effects of conflict trauma on children. Divorce, depending on the context, is certainly an adverse childhood experience and can be very traumatic for children. There are many situations of divorce; some parents are very mature and can focus on their children and continue to co-parent very effectively, but unfortunately, a significant number of parents, often related to their own issues of individual trauma, don’t deal with divorce and separation very well.
One of the issues there is that you may have two people who get married and have children together and it turns out one of them was a survivor of various traumatic things in their childhood and is dealing with all kind of emotional effects of that in adulthood. When you go on a first date or get married, you may not realize that, and they might not even realize that. Over time, the partner gets more aware. The person who was traumatized as a child may not associate their behaviour with their trauma but it manifests as anger, dishonesty, etc. And then they separate, and that can be a difficult thing to deal with. Trying to understand the psychological state of one’s clients and the family systems affecting them is important. In Ontario, we have a program where in some cases children are represented, but certainly when they’re younger, they don’t have lawyers.
SWY: If you could say one thing to someone who has been victimized by abuse, what would it be?
NB: Recognize it’s not your fault and get help.
SWY: On the contrary, if you could say one thing to someone who is a perpetrator of abuse, what would you say?
NB: We see that perpetrators of abuse often become abusers themselves. For young offenders, children who were abused at age 5 become perpetrators at age 12. What we do with adolescent offenders is different than what we do with 45-year-old priests who have been sexually abusing kids for years. Perpetrators are not homogenous groups, in fact, they are incredibly diverse. There are some people, at some points, where we have to say, “You’re going to jail for the rest of your life, and we’re going to do everything we can to catch you.” However, one of the encouraging things we see in Canada is that there has been a decline in child sexual abuse. Part of that is because of legal change. Historically, people who are sexually attracted to young children and adolescents (mainly men) would become teachers, priests, or coaches, in order to have access to kids. They would be generous and loving towards children and would select children whose parents were having difficulty. People could get away with that for centuries, and especially throughout much of the 20th century, that was happening. Now, there is a lot more awareness. If you become sexually involved with an adolescent or child and you are in a position of power, there is much more likely to be accountability and punishment. Therefore, people are somewhat less inclined, and they realize that if they do this, they’re going to jail for the rest of their life, so they don’t do it, and we get that deterrent effect. However, we have also seen a rise in international sex tourism and child pornography. We’ve diffused some of the problems but some of it is still persisting. It turns out that pedophilia is treatable, and they can live a normal life with good partners and children, but they need to get help. So, it’s important to recognize that you have a problem and get help.
SWY: How do you think the law can play a role in preventing intergenerational trauma?
NB: One of the things that makes law as a discipline very interesting is that it affects almost everything. What are the legal implications of COVID-19? There are quite a few, including some on the child and family abuse side. Law, in Western democracies, complex, secular societies, plays a really significant role in all kinds of issues and problems. Whether it’s the environment, global warming, COVID-19, or intergenerational trauma, it has an effect. But it’s also complex and challenging. A lot of these problems are layered, nuanced, and interrelated. So, the legal solutions and responses aren’t always simplistic, in fact, they rarely are.