Focus: New law brings change to rules for child performers

A new piece of legislation will bring “sizeable change” in how the entertainment industry handles child performers, a Toronto lawyer says.

Bill 17, the Protecting Child Performers Act, will come into effect next year with a whole new set of requirements around hiring children for live or recorded entertainment projects.

“The act does impose quite significant obligations and restrictions for producers of these types of entertainment, so it behooves lawyers who are advising these clients to familiarize themselves with the act because it’s quite detailed and quite complicated,” says Dentons Canada LLP entertainment lawyer Bob Tarantino.

The act includes “very odd, sort of persnickety” rules around how many hours children can work without a break and setting aside time for tutoring as well as obligations around parental accompaniment of child performers while travelling to and from the workplace, says Tarantino.

The rules will be more familiar to film and TV producers who hire actors protected by a union.

“Historically, most commercial-grade, high-quality film and television production in Ontario is governed by the
actors’ union, which is ACTRA,” says Tarantino, referring to the Alliance of Canadian Cinema, Television, and Radio Artists.

“For a film and television producer, they’d look at this and say, ‘I’ve already been doing this historically because ACTRA required me to do it.’”

The act applies ACTRA-like protections to child performers throughout the entertainment industry, Tarantino notes.

“A producer can come to me and say, ‘We’re making a movie and we’re going to do it on a non-union basis. So all of the actors we’re hiring are not members of a union.’ And that was totally fine. Now, even if it’s a non-union shoot and they’re hiring minors, they have to comply with these obligations.”

The new requirements will be especially different for live-performance operators such as circus, opera, and dance shows, according to Tarantino.

One of the most significant aspects of the act is a requirement that the employer deposit 25 per cent of a child’s income, where he or she makes more than $2,000 on a production project, into a trust account.

While that has been a relatively standard practice in the film and TV world, “it’s brand new” for other parts of the entertainment industry, says Tarantino.

The act’s requirements around the working hours of child performers and the breaks they’re to get between work are very specific.

A child less than three years old working in the recording industry can’t be before a recording device for longer than 15 consecutive minutes before getting a break that’s no less than 20 consecutive minutes.

When it comes to children more than three but less than six years of age, they can’t work longer than 30 consecutive minutes before taking a 15-minute break. The act goes on to specify the break requirement for three more age groups.

“It’s a big change,” says Tarantino, noting the act requires that there be a person dedicated to ensuring compliance with the act whenever a production involves child performers.

Theresa Tova, the national child advocate for ACTRA, says the union has long advocated for the protections included in Bill 17.

“We see this as providing some basic protections for the non-organized, the non-union world,” says Tova.

“This will extend the protections of health and safety, education, limitations on work hours, time before camera, . . . some protections for the child’s earnings, [and] the guarantee of a guardian on set, a presence of a parent,” she adds.

While the obligations under Bill 17 are “not as good” as the collectively negotiated deals, they’re still an important step toward ensuring the safety and well-being of children, according to Tova.

Tova says it’s not uncommon for some parents to force their children to drink coffee to keep them awake for long hours of work. “That’s a six year old. Send them home. They need to sleep. They’ve been on set for eight hours.”

It’s also important that parents or appointed guardians are on the set to see what’s happening with their children, she adds. “We don’t want children abused, for example, in the name of exposing abuse in a film that talks about child abuse.”

Before the new act became law, there were Employment Standards Act requirements around the use of child performers. But according to Tarantino, “this is much more comprehensive, it’s much more far-reaching.”

The act also says the employer “shall be responsible for paying the parent or guardian’s daily expenses and the costs of travel and accommodation up to the prescribed maximums.”

What the act doesn’t do, says Tarantino, is create a contract approval mechanism like the one used in British Columbia. That province has a provision that allows employers that have entered into a contract with a minor to take the document to a judge for approval, says Tarantino.

“The default position in common law is that contracts with minors generally can’t be enforced against the minor,” says Tarantino, adding jurisdictions such as British Columbia and California have created an approval mechanism to do away with that uncertainty.

“In Ontario, we still don’t have that, so it’s still sort of an open issue every time a producer enters into a contract with a minor whether that contract is going to be enforceable.

“To me, it’s a bit of a mystery as to why the government didn’t include that mechanism in this act because it seemed to me to be the perfect time to be introduced. I think, unfortunately, it’s a missed opportunity.”

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