S2-Episode 6: Giving foster kids a fair shot in life

Patricia Kosseim:

Hello. I’m Patricia Kosseim, Ontario’s Information and Privacy Commissioner, and you’re listening to Info Matters, a podcast about people, privacy and access to information. We dive into conversations with people from all walks of life and hear real stories about the access and privacy issues that matter most to them.

Welcome listeners, and thanks for tuning in. More than 11,700 children and youth are in the care of children’s aid societies across Ontario. When they transition out of the foster care system, many feel unprepared. They’re at a real disadvantage, facing challenging outcomes as they’re thrust into a new life of independence. Low academic achievement, unemployment, homelessness, early pregnancy and parenthood are just a few of the unwanted situations they might find themselves in.

In this episode, we’ll be talking with someone who’s faced the real challenges of aging out of foster care, and who’s made it her life mission ever since to make it easier for others. In particular, we’ll discuss the privacy concerns she and other recipients of child and family services have experienced when it comes to their personal information being kept in records, who can see those records, and for what purposes. We’ll also talk about the measures that need to be in place to help protect the privacy and security of their personal information and ensure they themselves can have access to their own files.

My guest for this episode is Jane Kovarikova. She’s a former foster kid who entered care at the tender age of six. Since leaving care at 16 years old, she struggled to make ends meet. She eventually went on to obtain a university degree in psychology, completed a master’s degree at the London School of Economics specialized in human rights, and is a current PhD candidate at the University of Western Ontario’s Department of Political Science.

Jane has become one of the country’s most outspoken advocates for advancing children’s rights. In 2017, she founded the Child Welfare Political Action Committee, a Canadian charity that advocates for a progressive child welfare system. Jane is living proof that foster kids like her can have the chance to pursue enriching bright futures if given the right supports that help put them on a level playing field with others. One of those supports is privacy protection of their child welfare files that allows them to turn the page from their past and take better control over the kind of future they wish to define for themselves. Jane, welcome and thank you for joining us today.

Jane Kovarikova:

Thank you so much for having me, Commissioner.

PK:

Can you start by giving listeners a bit of background about yourself, the evolution of your career and the nature of your work as a child advocate?

JK:

Sure. It kind of started when my family, my biological family, they were political immigrants escaping communism from Czechoslovakia. So they were newcomers here. And then I was born here. My first language was Czech however, so I didn’t speak English until I started school essentially. Around that same time, the family dynamic fell apart. So that meant that the state intervened. The usual reasons for why children end up in the foster care system are some variation of abuse and/or neglect in the household. My case was not unique. And by age nine, I was in the foster care system. What was supposed to be a temporary basis, but termed permanent when I was made a Crown Ward or ward of the state at age 12. I had a handful of placements around five or so. And then by the time I was age 16, I had quite enough of the experience because you do oftentimes feel like you’re perhaps a second class citizen or you’re watching someone else’s family life go by around you and it can be lonely.

I lobbied to actually leave the system early. Typically, foster children stay in the home ends at age 18, and then you’re put on a very small subsistence allowance. At the time, it was $663. I think now it’s about $875 or so per month until your age 21. But in any event, I left at 16 and I had to exist off of $663. I subsequently dropped out of high school. Many foster children do drop out of high school somewhere to the tune of about 60% of us. First thing I did after I dropped out of high school, however, was I got a job in retail and then saved my money for a few months and then bought myself a five star inclusive to the Dominican and hired a limo to take me from Aurelia to Pearson. But why I like that story is because it taught me that I could actually work hard for a little bit and have access to the good things in life too.

So that put me on a bit more of a track and I end up returning to post-secondary. I was a mature student at a community college at age 18. I did a one year certificate, which allowed me to study at Laurentian for my undergrad, had totally different perspective on life after that, much more confident. So I applied to London School of Economics, finished my master’s there, lived in Europe a while.

In between my Masters and PhD, I was lucky enough to be able to run a politician’s office at the legislature. So I worked for MPP Rod Jackson from 2011 to ‘14. Once I started the PhD, shortly thereafter, I founded a national charity, the Child Welfare Political Action Committee. And what we do is we advocate to make legislative and policy changes to the child protection system so that youth can succeed after care. I think some of my earlier experiences are what informed doing that kind of work naturally and proud to say that the charity has turned five years old this year.

PK:

Thank you so much for that inspiring background on your self and your openness to share it with others. I think it’s incredibly inspiring and you’re quite a formidable force. Since I first met you, I thought that. So I’m very happy to have you share your story with Ontarians today.

You’ve done a quite a bit of research about the outcomes of youth after they age out of care. I’d like to hear from you some of the key findings resulting from that research that’s really given you insight into the experience, not only your own lived experience, but the experience of others more generally.

JK:

Sure. I undertook a research project that reviewed the literature on youth outcomes who have left the care systems. I ended up looking at countries in USA, Canada, UK, Australia, New Zealand. The main thing that I did learn, however, is that despite the fact studies went back sometimes even five decades and across various countries, the outcomes of youth leaving care have not changed. This is despite policy changes, despite more organizations serving youth, despite more investment in child protection systems at the government level, and despite more regulation and more bureaucracy. What the research suggested to me was you can’t change what you don’t measure, and that’s the real issue. Our systems have a major oversight and that’s that they don’t track youth outcomes after care. And it’s not good enough just to rely on the academic studies and say, “Oh, it’s bad.” You need a number.

So in Ontario, how many graduate from high school? How many dropout? In Ontario, how many have criminal justice system involvement at which times after they’re aging out or before? Once you know what your rates are, then you imply interventions and then you check again. If there was an impact, then great, you’re winning. And if it didn’t do anything, then you need to make edits to what you’re funding.

The research also reviewed what typical outcomes for youth leaving care are. A lot of us have heard this before, but low academic achievement, unemployment or underemployment, homelessness, housing insecurity, criminal justice system involvement, early parenthood, poor physical and mental health and loneliness. Most people who leave care, you’re leaving pretty early. Like in my case, 16 or even 18, and you’re not maybe through or past some of that trauma that you would have experienced that landed you in care in the first place. And sometimes care could be a traumatic experience too. And expecting that this immature child, I’m referring to myself, is going to be fully self-sufficient by age 16 to 18 on $600 is a bit of a recipe. We all definitely get exited out of the system into poverty. $600 a month is poverty level. And then it kind of just depends on people’s individual journeys what that looks like.

PK:

You’ve been quite vocal about the need for youth records to be sealed when they age out of the system. I was wondering if you could help make the connection between privacy protection and some of the outcomes of youth when they leave the system and why you feel so strongly about the privacy of records

JK:

In terms of how that links into privacy is once you enter the care system, you have experienced some kind of trauma or neglect, right? So there’s very private details about you recorded in these files. Now, most people grow up in their parents’ home and their parents have a record of those private details of their own children’s upbringing, but it’s not actually written down and it certainly isn’t used against people later. So that’s kind of the difference with our files and it’s why I feel passionate about it as well.

I think once you leave the care system, you need to have a fair shot at a bright future, and having some kind of a file linger over you to be used by the state in certain contexts doesn’t seem very fair. There was the case of somebody who in fact worked for the OPS, the Ontario Public Service. As a very law abiding citizen, they went two Children’s Aid, they decided they would foster, and I think they’re ultimately looking to adopt. And there was a question on that forum that said, “Have you been in care?” And so they checked it thinking, “Yeah.” This is actually an asset to you. I know about the system. And then all of a sudden they became subject to additional visits by the agency, including an overzealous worker perhaps saying on unannounced visits, “You better tell the truth, because we have this in the file.” So this is not an appropriate use of those files.

And just to clarify, right now, juvenile offenders also have files based on that wrongdoing that has been committed. Those files actually get sealed so it doesn’t harm their futures. To land in foster care, you didn’t even commit any crimes. Oftentimes, things were done to you. And this is now in a file and it’s apparently able to be used against you forever.

Another example is someone on my team, she’s a family lawyer. She can cite to herself many, many examples of where in divorce court when there’s spouses and it’s gone a little bit nasty, they often can ask in disclosures for these childhood files of yours as if somehow you mouthing off when you were a teenager makes you a worse parent in divorce court. So this is another way where I feel the files are terribly misused.

And then the other things is you have many, many employees at any one agency, it could be hundreds of employees, it’s just one search away, that file. And so at any time, if there’s something written down there that’s not accurate or even embarrassing or whatever, someone could take a screenshot and take the risk that they’re not going to get caught for accessing that file.

The other way that we’re vulnerable is the ransomware attacks. Those are targeting children’s aid societies more and more frequently. And having all this data that’s finished essentially, you’ve aged out of care. These adults, former youth in care files in the same system is a major liability.

PK:

So it’s about turning the page on your past and being given, as you say, a level playing field, an equal chance to design a future for yourself, unencumbered by your history and your past. I certainly get that. I like very much and appreciate your vivid examples. I think they really bring home the reasons why privacy protection in this context is so important.

To try to understand though the other side, what do you think are some of the reasons why child welfare workers or others would want or need continued access to personal information on an exceptional basis, even after a child ages out of the system?

JK:

There are some things that need to be worked out. Like you can’t just say we’re going to seal the file after the child’s aged out of care, because what does aging out of care mean? So I left at 16. Does that mean they should have sealed it at 16? Well, I was still accepting services until I was 21. Well, most finish at 18 and that’s technically when you’re an adult. So is that aging out of care? And then at 21, now there’s this moratorium because of COVID so you almost can’t pick an age, and I’ve evolved in terms of how I think about it too, where it’s the last date of service I think.

There’s another good point that was brought to my attention from the bureaucracy that they really would like to retain access for research purposes, but anonymized or aggregated research. And like I said earlier in this podcast, one of the reasons why we have these outcomes that don’t improve over time is because we don’t measure and do enough research actually. So I wouldn’t want to get in the way of that as long as it was aggregated and anonymized and for the purposes of improving service delivery. But then, are there any other exceptions where access would be warranted? This now starts leading into discussions about, is privacy or safety more important?

It has been suggested to me that their concern is we should… We, the system, should retain access to these private details of people who have aged out of the foster care system in the hypothetical circumstance they have decided to have a family and that then secondary hypothetical circumstance, they now harm their children. I really have quite a reaction to this level of logic because it is driven by prejudice. There is not enough research to hold the position that foster children who have children are more likely to become system involved. There’s not just simply not enough to make the assumption that I, as someone from care, am more likely to harm my children, if I’m having children at all.

You can’t treat people, certain groups of people differently as if they’re more likely to commit crimes and apply different interventions or standards to them preemptively. The file remains available. And if there is a legitimate safety reason why it’s required later on after age out, then you can go to the court and request it. There are many juvenile records who also become unsealed, but you have to go through the court to manage that. So I’m not against balancing safety, but at this moment, they’re just simply unfettered privacy violations to these files.

PK:

You’re not suggesting that files be destroyed at the age of 18 or 21 or whatever the appropriate age is. You’re talking about ceiling records and limiting access to situations where safety clearly overrides the privacy interest.

In the last session of the legislative assembly prior to the June election, you worked with MPP for Sarnia-Lambton Bob Bailey to introduce a private member’s bill called The Fostering Privacy Fairness Act. Can you talk to us a little bit about the policy aims of that bill?

JK:

We’ve been working on this quite some time as an organization. So Child Welfare Political Action Committee did the lobbying and introduced the idea. Many people don’t even know this is an issue. Many people don’t even know what a foster child is. So there’s a lot of work to be done in terms of education. So we spent the first couple of years of our organization doing that with various MPPs. And MPP Bob Bailey felt very strongly, this is something that ought to be fixed. So we did start working together.

In a nutshell, what the bill does is it says that if you grew up in the foster care system, your youth and care file specifically would be sealed after you’ve received service. For example, I go back to the juvenile offenders. If you have a youth criminal justice record, after age 18, if you’re pulled over for speeding, no one knows you had that record. In my case, if I decided I’m going to go sit on a board at a children’s aid society and they ran my name, my name would not populate on their search, even though I was a former youth in care. Now, my name would populate on their search if I’ve been investigated for wrongdoing in the past. So we’re not actually trying to impact history or record of being reported or investigated. That’s not impacted. Just me being a child, my childhood history, that’s what would not populate anymore. Because then you expose it to basically further access that is not warranted or necessary.

So that’s the bill in a nutshell. We did originally write it where if there was a good reason, a good safety reason for access to unseal it by a third party after the fact of age out, then that request would be decided by a court. We have sort of gone back and forth whether or not we should consider other alternatives to how a third party might access it based on safety concerns. And that’s what we’ll be working on, I think subsequently when we do a review of it before it’s next introduction. And Bob Bailey, MPP Bailey still very much committed to seeing this through.

PK:

Very interesting. We’ll certainly be following the debate and the evolution of that bill and all the hard work you’ve put into it. If you were to sit on the board of a children’s aid society, in fact, you have not only sat on the board, you’ve chaired the board at Simcoe Muskoka Connexions, which happens to be the same agency that was responsible for you during your youth. What skills do you feel you brought to your leadership role there as someone who was raised in care, and why is that lived experience so important in your view to a role like that?

JK:

I did start sitting on that board about 10 years ago now. So I just finished up with them actually, Simcoe Muskoka Family Connexions. And they joked when I left last week or a couple of weeks ago that I had finally aged out of foster care. When I joined the board, I really didn’t know much about board governance or what the role entailed. So I have actually learned a ton in the last 10 years. You essentially oversee budgets of $50 million. There’s 400 employees, you’re main employee, the CEO, you’re hiring, and you’re overseeing their work as well. You are basically assessing risk all of the time. So this is where some of my work on the board does intersect with the privacy question because having a lot of dead files essentially sitting in the same general database and searchable anytime is a liability.

And we certainly have been targeted for ransomware, like I know in this sector, and there are obviously privacy breaches that occur. That’s just doing business in a data driven world. Certainly when there’s debates at the board about some of these higher level issues, I can bring a human perspective to it, like, “Okay, let me share with you how this looks to me like as someone whose file is sitting there.” I think that makes things pretty real for people.

One of the greatest contributions I feel that having me on that board was, and credit to them for seeing me and allowing me to grow within the organization in that capacity, is it’s been about 130 years of children’s aid in this province for the most part. I’m the first person in Simcoe Muskoka with lived experience that’s ever chaired as children’s aid society. It’s only the second time in Ontario that’s happened. But it’s kind of odd because the system’s all about us and we have no leadership powers or influence in the entire sector. I think we do need to start prioritizing the value of lived experience if we want to influence change really at these systems levels.

PK:

You’re a great example or a model, I think that can be followed and emulated in order to enhance the presence of people with lived experience in leadership roles. I really want to hand it to you for setting the path and giving that example to many whom you’re inspiring today as you speak. So thank you for that.

What are some of the adjustments that children’s aid society, the Simcoe Muskoka Family Connexions agency has made now that youth and former youth in care have access and privacy rights explicitly provided for under Part X of the Child, Youth and Family Services Act.

JK:

I think agencies on an individual agency basis started attending a lot more to the privacy question. So I do think it was a big step in the right direction. And individual agencies now have experts on this subject matter area to try to work with compliance to what Part X requires. Okay, the individual who the file’s about, that was the biggest change, great. So now me, I can go to the agencies that raise me and I can say, you know, “I’d like to request my file,” and they must respond and there are timelines. So those processes have come into place to be compliant with the Act. And that is a positive change because people can access their own histories now.

Now the thing that it didn’t do though, is it didn’t rule out certain types of access that are unfair. So like when I go to apply for a board position, they screen my name, they have search result pops and they have access, and that’s a legitimate touch on my file right now. That actually shouldn’t be a legitimate touch. What’s relevant to the board is not what kind of a child I was. What’s relevant to the board is, had I be I’d done any wrongdoing and been investigated before? So Part X didn’t go far enough from that point of view. And that’s where the legislation that we’re developing with MPP Bailey will push further essentially.

Another thing that’s happened with this Part X is I do believe they gave you the ability to edit your file, edit details about what’s written about you in the file. Now, that’s an interesting point. You know, the Sixties Scoop happened here. This is where a lot of an indigenous youth were pulled out, possibly not for the right reasons and put into the system. They had files about them as well. And so there’s been a lot of requests for these historic files. And some people are finding sometimes blatantly slanderous or racist commentary within their own files. That just goes to show like how little control we’ve ever had over what’s written about our own histories. None of the data in my personal file right now has been vetted for accuracy or proofed by me. If I did look at it, I’m certain I would find things in there where I’d be very offended or I would dispute the accuracy of the commentary.

So now there’s this opportunity to edit they say, according to the legislation, but that’s really not how it’s played out in practice. What you can do as opposed to edit is you can add a comment. So you have slanderous content, your comment on how it’s not true, and that’s it. You still don’t really own your history. It’s something that was written about you without accountability. So I do think there’s further to go on that one. Although, I do like the direction that it went into.

The other thing, what I liked about part X is it did add in penalties for inappropriate access essentially as we know it right now. People do sometimes pull files, like there’s the egregious breaches that happen and they go unknown for the most part. And the reason why they go unknown is because someone actually has to catch someone in real time doing that, or they have to admit it to somebody. But if you’re malicious and well organized, neither of those things happen and you have access. So one way around that is to conduct proactive auditing. It could be on a random basis or what have you. The agency could be responsible for doing it themselves.

Now, no one really wants to do that to themselves. So this is where maybe the IPC can help promote such a standard. Through my advocacy through Child Welfare PAC, I have heard of a lot of complaints regarding the timelines. So it’s really good that when a request is made to see your own file, someone has to respond to you next time, but there are also extensions. And I think some of those may be being used a bit too liberally. So that’s worth checking into. Yeah, and I think that’s probably in a nutshell sort of some thoughts I had around Part X. Great step in the right direction. It was a long time overdue, but we can certainly do more.

PK:

Thank you for that. And certainly Part X did introduce and explicitly require that individuals have access, as you said, to their own files and be able to correct information in their file, including through notation, as you say, when there’s a difference of opinion. And there’s important privacy protections and security requirements that agencies have to comply with now under Part X, and any instance of non-compliance is and can be the subject of a complaint to our office, as you said, which I think is very important to provide an agency like us with oversight over compliance.

I just want to ask you, as the chair of the board of one of these children’s aid societies, what advice do you have to other board members when it comes to their agency’s responsibilities to comply with Part X? In terms of risk reduction, what would you say to other board members in their governance role and what they should be looking for, pushing for to ensure that risk is managed and that compliance is promoted within their organization?

JK:

I guess three things. Well, first off, I would definitely encourage people to mobilize around really sealing and storing separately files which no longer serve a function. So specifically the youth and care files after age out, because that will reduce the risk of a lot more data that’s no longer available to hacking or inappropriate access. And then regarding inappropriate access, I do think that having a proactive auditing function, whether it’s implemented at the agency level or encouraged by the IPC or legislated, I do think that would go a long way to making people think twice before they do anything to that effect. And the third thing that would be pretty important on a board level is reporting. I know the IPC has kept track of breaches and whatnot, and that information should really be fed back into the board. So you can keep track of if that’s an appropriate levels and how to essentially mitigate any instances or trends that may be occurring.

PK:

Thank you for that. As you said, our office does receive complaints by young people and adults looking to get access to their care files or to correct information or who suspect their personal information has been inappropriately accessed. And when we receive complaints, particularly from this vulnerable sector, I’d like to know from you with your lived experience, if you have any advice for us on how we, as an organization, can better serve this group or this population?

JK:

We’re pretty system wise, but system wary too. Sometimes systems have been our parents, like in my case. So there’s a lot of feelings that come with all of that. Bureaucracies and systems can be very unresponsive and the power imbalance is incredible. And when an individual contacts you, they don’t always know the laws. Like this is an area of interest for me, but most of the time they won’t know the laws and they may not know how to navigate the system or what’s word to use to ask for what they need. So it’s just about being really insightful and clear about what the process is, like, step one, A, B, C, D. Like spell it out, because no one else knows your processes.

So I think that’s one part of it. And then also just respecting that honestly, sometimes the anger towards this, there’s a feeling perhaps that across time you’ve been very much not heard. A lot of things have been happening to you. You know, something imploded in your family, someone came in, removed you, and that you didn’t have a say where you went or how often or who, and then finally you’re aged out and you need things, but you don’t want to ask. So it’s a tricky group, I would say, to serve, but I think every allowance and every benefit of the doubt and every forgiveness for any hostility towards the system should be given to this population in particular, because you just start at a deficit and then someone’s got to help make up that deficit and you can’t leave it all on the child to sort it out. And that’s what we’re seeing here. And that’s why I do the work that I do.

PK:

Thank you very much for that advice. I’m going to take that to heart because I think there’s a lot there to unpack and really take seriously in our own processes and how we explain those processes to others. So thank you for that insight.

There are obviously very important legal questions that you’re alluding to, but I also hear you talking fundamentally about a power imbalance and the need to equilibrate that power imbalance between children and the state and in particular, children’s aid societies. Is there anything the IPC can do to help remedy that power imbalance? Is there something in our educational mandate? Is there something other than legal reform that you think we can do to address some of the really fundamental issues that you’re raising?

JK:

So obviously, the legal reforms, where I lean into quite heavily, because I do think that sets a strong standard. But on the flip side, advocacy and education are always a good starting place too. I feel like in child protection, the really philosophical questions go unexplored, including in the social work programs that underpin the sector. No one really talks about whose rights are we protecting, is it child or family rights? No one dives deep into the privacy questions like, whose property is this file? There’s not enough of those types of conversations and there isn’t really a clear space on where to have them. So I would suggest if the IPC can do something, then maybe make a special report on this issue area and explore some of those things a bit deeper and then see what kind of recommendations come from that.

PK:

Wonderful. Thank you so much, Jane, for all your incredible insights today and especially for sharing your personal experiences that I think is a real inspiration to many children and youth, but many adults too, dealing in and with the system. To hear your insights from the perspective that you’ve earned your voice from is really eye opening. I really enjoyed hearing you and learning humbly about what it’s like for young people transitioning out of Ontario’s child welfare system, how important it is for kids aging out of care to get the supports they need for success, including access to their own information and control over their own information.

For listeners who want to learn more about Jane’s work, you can visit the website of the Child Welfare Political Action Committee at childwelfarepac.com. If you’d like to know more about the work my office is doing to champion the access and privacy rights of Ontario’s children and youth under Part X of the Child, Youth and Family Services Act, I encourage you to visit our website at ipc.on.ca. Our website also includes general information about privacy and access rights under Ontario’s laws, and you can always call or email us for assistance and general information. If you’d like to catch up on previous episodes of Info Matters, and we’ve got quite a few lined up now, they’re available on Apple Podcasts, Spotify, and all major streaming services. Well, that’s it for this episode. Thank you all for listening and until next time.

I’m Patricia Kosseim, Ontario’s Information and Privacy Commissioner, and this has been Info Matters. If you enjoy the podcast, leave us a rating or review. If there’s an access or privacy topic you’d like us to explore on a future episode, we’d love to hear from you. Send us a tweet @IPCinfoprivacy or email us at [email protected]. Thanks for listening and please join us again for more conversations about people, privacy, and access to information. If it matters to you, it matters to me.