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The intersections between entertainment law and immigration law has traditionally been a front-end discussion. Which type of entertainers can come in without a work permit? Which will require one? Are there any LMIA-exemptions?
Very little attention has been paid to the back-end, long-term benefit of having a Canadian permanent resident or Citizen involved in the production of a film. There is a benefit. That benefit is a refundable 25% tax credit for utilizing Canadians.
I will try to do this topic justice here in a series of posts.
- Part 1 will provide an overview of the CPTC tax credit, review the general eligiblity guidelines relating to immigration, and highlight the “Canadian” Requirements for both Film Production and Distribution companies as well as Producer-Related Personnel.
- Part 2 will look specifically at Creative Key Personnel, and why you may see so many films filmed in Canada with Canadian actors and directors. It will also look at some the key exceptions.
- Part 3 will look at Joint Productions and how some of Canada’s Telefilm Co-Production Agreements can be implemented in an immigration savy way. I will also wrap up on some potential Canadian Immigration related strategies.
What is the CPTC?
The Canadian Film or Video Production Tax Credit (CPTC) is fully refundable tax credit, available at a rate of 25 percent of the qualified labour expenditure of an eligible production. The CPTC is jointly administered by the Canadian Audio-Visual Certification Office (CAVCO) and the Canada Revenue Agency. (see: http://www.pch.gc.ca/eng/1268752355851)
In the CPTC Guidelines (the “Guidelines”) there is a list of 11 requirements in order to meet the program eligibility. Several of these criteria touch upon the importance of ensuring certain key individuals and entities are Canadian. I will address only the ones relevant to immigration. The Guidelines state (emphasis added):
All producer-related personnel (other than those receiving exemptions permitted in limited circumstances) must be Canadian. For productions involving non-Canadian development, financing or distribution, the producer should read s. 4.09 and s. 4.10 thoroughly before entering into any agreements with non-Canadians.
Not less than 75% of the total of all costs for services provided toward producing the production (other than excluded costs) must be payable for services provided to or by individuals who are Canadians, and not less than 75% of the total of all costs incurred for the post-production must be incurred for services provided in Canada. (s. 5.06)*
I will analyze s.4.09 and s.4.10 in Part 2 of my series on this topic.
“Canadian” production company and distribution company requirements
The guide goes on to discuss the requirement for the CPTC applicant production company and the Canadian distribution company to be Canadian (emphasis added):
To qualify for the CPTC, the applicant production company, and if applicable, the Canadian distribution company through which it will distribute the production in Canada, must be owned and controlled, either directly or indirectly, by Canadian citizens or permanent residents in accordance with definitions found in a combination of the Citizenship Act, the Immigration and Refugee Protection Act (which replaces the Immigration Act) and the Investment Canada Act (ICA). This requirement is set out in subsection 1106(1) of the Regulations of the Income Tax Act.
By virtue of s. 1106 of the Income Tax Regulations, CAVCO must determine, among other things, whether a corporation’s shareholders are “Canadian” within the meaning of s. 3 of the ICA. According to the ICA, Canadian means (emphasis added in original and in analysis):
A Canadian citizen;
A permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, who has been ordinarily resident in Canada for not more than one year after the time at which he or she first became eligible to apply for Canadian citizenship;
A Canadian government, whether federal, provincial or local, or an agency thereof; or
An entity that is Canadian-controlled, as determined under subsection 26(1) or (2) and for which there has been no determination made under subsection 26(2.1) or (2.11) or declaration made under subsection 26 (2.2).
For greater clarity, an individual is “Canadian” for the purpose of determining Canadian control of a corporation if it can be established that he or she is:
- A Canadian citizen; or
- A permanent resident, within the meaning of subsection 2(1) the Immigration and Refugee Protection Act, who i) is ordinarily resident* in Canada and ii) is not eligible to apply for Canadian citizenship or has not been eligible to apply for Canadian citizenship for more than one year.
*To be considered “ordinarily resident” in Canada, an individual must demonstrate that he or she has taken residence in Canada in his or her usual day-to-day routine.
As you can see, the CAVCO/ICA definition of Canadian in respect of permanent residents is stricter than the definition provided in IRPA. The individual not only must be a permanent resident but also one who is ordinarily resident (by definition essentially lives in Canada) and as well cannot have been eligible for Citizenship for more than one year at which time they have did not applied to obtain Citizenship status.
“Canadian” Production-Personnel Requirements
To further complicate things, a different definition of Canadian from the Investment Canada Act is applied when determining whether the producer-related personnel is Canadian.
It is written (emphasis added):
4.01 Proof of Canadian Citizenship or Permanent Residency
Other than where a production is a treaty co-production, a production company must provide proof that individuals for whom key creative points are being requested, as well as individuals occupying producer-related positions, are Canadian. With respect to producer-related or key creative personnel for a production, the term “Canadian” is defined as a person who is, at all relevant times, a Canadian citizen as defined in the Citizenship Act, or a permanent resident as defined in the Immigration and Refugee Protection Act. The person must be Canadian during the entire time he or she performs any duties in relation to the production.
The CPTC Guidelines do not specify or clarify what “during the entire time he or she performs any duties in relation to the production.” However, the Canada Radio-Television and Telecommunications Commission in their guide (see: http://www.crtc.gc.ca/canrec/eng/guide2.htm) to their own “Canadian content” certification and application process provides guidance that is likely cross-applicable. The CRTC guide states (emphasis added):
Canadian at all relevant times means that an individual must be Canadian at the time he or she begins his or her duties in relation to the production and during the entire course of the filming or taping and post-production. An individual cannot acquire permanent resident status in order to qualify as Canadian at any point during a production; such status must be confirmed before the individual begins engaging in any activity related to the production. An individual acquiring permanent resident status after he or she begins engaging in any activity related to the production will be considered a non-Canadian for the entire production. Likewise a corporation must be a Canadian-controlled corporation during the same time period.
Therefore it is important that applicants confirm the status of each person who will occupy a key creative position before the person begins engaging in any activity related to the production.
This issue is one that I will believe will be at the crux of where an immigration lawyer can add value. “Activity related to the production” seems very broad reaching, particularly where in the entertainment field there is a lot of cross-collaboration and sharing between film projects and also a very short transition (one day) between temporary residence and permanent residence.
Reading the above, it appears that it will be very important for Production Companies to keep a very good record of each production personnel’s start dates, along with their immigration status throughout the film production process. This along with important dates such as permanent residency card expiry dates, as expired PR cards will trigger the need to reapply to CAVCO to obtain a new personnel number (more on this in my next post!).
In part two, I will get to the fun stuff. A film (live production and animated) has several key creative personnel – directors, lead actors – what are the rules for them? How many need to be “Canadian” to qualify for the CPTC tax credit? STAY TUNED!!
Earlier this year, I had the distinct privilege of interviewing my former undergraduate colleague and friend Paul Sohn.
Paul (http://paulsohn.org/) is an award-winning author, mentor, leadership expert, and devout Christian among many other titles. He comes from very hardworking and successful roots, one that began when he came to Canada from Korea, by himself, as a 14-year old student.
He has since left Canada to pursue a successful career in the United States, which began at Boeing and has now landed him with GIANT Worldwide. He has some excellent and inspirational advice for those starting out in Canada, particularly from the Korean diaspora.
- What is your name, age, and nationality? Where do you currently live and work?
My name is Paul Sohn. I’m a 28 year old Korean. I currently work as a Consulting Associate at GIANT Worldwide and am pursuing a Masters in Organization Development at Pepperdine University.
- When did you first immigrate to Canada? Can you tell us why your family chose to immigrate to Vancouver from South Korea?
At the age of 14, I left everything I had in Korea – including my family and friends – to start a new life in Canada all by myself. Frankly speaking, I honestly didn’t see any future for in Korea. The societal and cultural pressures to conform to a certain lifestyle was overbearing. In many ways, I was deemed a “loser” and my prospects for a successful life eluded me. In an attempt re-design my life, I mustered the courage and decided to leave everything behind and start a new life.
- What do you remember about your early days in Vancouver?
The first several years was about the transition from a young boy to young adult. I experienced many new things in life. New homestay family. New school. New friends. New language. New culture and so on. Everything was about new beginnings and I was doing my best to acclimate to the new culture.
- What types of things did you do to help integrate yourself into this city when you arrived?
I had the privilege of living with a Canadian homestay family during high school. They treated me as if I was their real child. They poured out their love. They invested in my growth. They cared about my future. I remember spending countless hours talking about all kinds of topics. Our relationship has continued to flourish since then. Now, I call them “mom” and “dad” and the homestay children as my “brothers” and “sisters.” This support network enabled me to stay focused and adjust to the new environment.
- Did you feel any challenges being a new immigrant and a Korean in Vancouver? Did that change over time?
As a Korean, the temptation to surround myself with same Koreans both at school and social life was real. After all, people find it a lot more comfortable being around with people who speaks the same language and understands your culture. However, I felt a strong need to go outside of my comfort zone and to stretch myself and challenge the status quo. Without focus and intentionality, it’s so easy to choose the easy road. Instead, I chose the narrow path. The journey wasn’t easy. I had to face my fears and overcome my weaknesses to become part of the mainstream.
- Why did you choose to leave Vancouver?
After graduating from high school and university, I moved to Portland, OR in the United States for my first and new full-time job. Not only was it difficult to find a career that aligned my vocational interests, my parents moved from Korea to the States a few years prior to my graduation. Thankfully, I was able to obtain a green card allowing me to work in the States which offered greater career mobility.
- Do you hope to return to live here permanently in the future?
I don’t have any immediate plans to return back to Canada at this point. At point, however, I’d like to come back and live for at least several years.
- What would you recommend to new immigrants who may be unable to secure employment or develop networks in Canada?
First and foremost, learn the language. Without being proficient in English, your choices for secure employment becomes virtually impossible. I also think connections and building relationships with various people will help you to find career opportunities in Canada. Studies show that most people get a job through personal networks instead of submitting your application online.
- What culturally specific challenges do you think exist for new immigrants from Korea to Vancouver?
Like I said earlier, there is a tendency for Koreans to limit their network with just Koreans. It’s vital to expand your network and build a culturally diverse portfolio of connections.
- What do you see for the potential of Korean business in North America, and specifically Vancouver?
I have seen a growing number of bright Koreans moving to North America. As they engage with culture and immerse themselves as part of the mainstream, I believe this will generate more opportunities for growth. In addition, the rise of Hallyu (Korean Wave) worldwide will create greater interest for Koreans to create a blue ocean market.
- As someone of the Korean Diaspora community who uses faith as a major motivation factor how do you believe faith can be a useful tool for new Korean immigrants to Canada? What local Vancouver faith-based organizations would you recommend?
Faith is a powerful source of hope for immigrants to Canada. In particular, Koreans are known for their religious fervor and belief in God. Many immigrants find churches to find a community where they can find “home.” Many rely on this religious community as a way to find new vocational opportunities as well. The practical benefits of joining a church cannot be ignored.
On June 2, 2015, the Truth and Reconciliation Commission released 94 recommendations after years of hearings and testimony from thousands of residential school survivors and several other key stakeholders.
Among those recommendations are a set related to citizenship and immigration (emphasis added):
Newcomers to Canada
93. We call upon the federal government, in collaboration with the national Aboriginal organizations, to revise the information kit for newcomers to Canada and its citizenship test to reflect a more inclusive history of the diverse Aboriginal peoples of Canada, including information about the Treaties and history of residential schools.
94. We call upon the Government of Canada to replace the Oath of Citizenship with the following:
I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada including Treaties with Indigenous Peoples, and fulfill my duties as a Canadian citizen.
These changes, to me, are important beyond just a symbolic gesture of apology for past wrongdoing. From the Canadian history textbooks I grew up reading to today’s oath and exam materials, none has truthfully and honestly reflected the complex, diverse, rich, important, and at times very tragic history of our Aboriginal peoples.
For myself personally, I could not care less if a new citizen does not know the full name of our Prime Minister. Prime Ministers come and go. However, for a new citizen not to know of the events surrounding Residential Schools or know of at least the names of two Aboriginal bands in Canada, is inexcusable. Its a critical omission that will affect their future human interactions with Aboriginal peoples and thus our own Canadian identity.
As we welcome in new Canadians, it only seems right we reflect on and pay homage to the first Canadians. Our Aboriginal Peoples. Our brothers and sisters. Our forefathers.
I hope Minister Alexander or whoever becomes Minister of Citizenship and Immigration post-election, makes implementing this uncontroversial change, an early priority.
Recently, likely due to the summer wedding season being in full effect, I have been approached by several individuals considering the spousal sponsorship process.
The increased interest in sponsoring a spouse may also be tied to the increasing difficulty of obtaining permanent residence through other economic streams. Particularly for young international couples whose study permits, post graduate permits, and International Experience Class work permits are running out, the need to tie the knot in order to stay together becomes a date-ruining dinner time conversation.
As part one of a multi-part series, I will try and cover some of the challenges associated with spousal sponsorship applications.
So what are some considerations to consider prior to embarking on an application to sponsor?
1. Where are the potential Applicant and Sponsor currently residing and what is their legal status there? What is the Applicant’s immigration status in Canada?
This question is important for several reasons. To file an Inside Canada spousal sponsorship application, there is a requirement for the Applicant to actually be in Canada.
For Outside Canada spousal sponsorships, there is also the potential option of selecting the Visa Office that processes the second part of your Application. You can apply to a Visa Office that is not your country of citizenship if you currently hold legal status in that country and have done so for more than one consecutive year. This may be particularly useful for applicants who are citizens in a country such as Pakistan (currently 40 month processing time) but have legal status by virtue of study or work in London, England (currently 28 month processing time).
It is also important to consider their status (if they are in Canada). Do they have temporary resident status in Canada now? When does that status expire? Are they out of status?
These questions will affect what procedure you ultimately choose in sponsoring.
2. What is the status of your relationship?
Closely related to the above question of immigration status is the question of relationship status. Under Canadian Immigration Law you can sponsor a spouse or common law partner if:
(1) they are your legal spouse (i.e. you married);
(2) they are your common-law partner (at least 1 year of cohabitation and currently cohabiting in conjugal relationship);
(3) they have been in a conjugal relationship with you for one year (unable to cohabit due to persecution or penal control);
In addition to determining whether you have met the above categories, it is also important to ask yourself whether you have the evidence to show that you have met the above categories. For example for you and your common-law partner: Do you have proof that you have co-rented or co-leased a place to live for over a year? Do you have a joint bank account showing a conjugal (not just roommate) relationship?
These are all very relevant questions in determining common-law status as well as relationship genuineness at a later stage.
3. What are current application processing times?
Currently for Inside Canada spousal sponsorship applications the processing time is 26 months. This time is encapsulated in 17 months to obtain a first-stage approval that the relationship is bona-fide. In an Inside Canada sponsorship all of the processing takes place in Canada at Case Processing Centre Mississauga (CPC-M). Interviews, if necessary, are generally arranged at the local CIC office in the city which you reside and will require attendance by both Applicant and Sponsor.
Currently for an Outside Canada spousal sponsorship application, the processing time varies from 5 to 40 months depending on Visa Office. Note that this in addition to the assessment of the sponsor which currently takes 55 days. In an Outside Canada process, the sponsor assessment occurs at CPC-M before the application is sent to a visa post abroad for assessment of the bona fides. Interviews, if necessary, are arranged outside Canada and will require attendance by both Applicant and Sponsor.
Why is it important whether you have an immigration officer in Pakistan or London assesses your application? Asides from the level of scrutiny that may possibly differ (statistics don’t show too much of a correlation between visa posts), it will definitely affect the time it takes to make a decision.
Here are the processing times accessed from CIC as of 02/06/2015.
The tables below indicate application processing times at Canadian visa offices once Step 1 has been completed. The times are based on how long it took to process 80 percent of all cases between April 1, 2014 to March 31, 2015. Processing times are subject to change.
Last quarterly update: May 20, 2015
Africa and Middle East Visa Office Processing Times IN MONTHS
(based on a complete application package)
Abu Dhabi – United Arab Emirates 13 Accra – Ghana 16 Amman – Jordan 24 Ankara – Turkey 11 Beirut – Lebanon 16 Cairo – Egypt 18 Dakar – Senegal 21 Nairobi – Kenya 22 Pretoria – South Africa 15 Rabat – Morocco 8 Tel Aviv – Israel 9
Asia and Pacific Visa Office Processing Times IN MONTHS
(based on a complete application package)
Beijing – China 10 Colombo – Sri Lanka 10 Hong Kong – China 10 Islamabad – Pakistan 40 Manila – Philippines 17 New Delhi – India 16 Singapore – Singapore 28 Sydney – Australia 11
Europe Visa Office Processing Times IN MONTHS
(based on a complete application package)
Bucharest – Romania 17 Kyiv – Ukraine 12 London – United Kingdom 28 Moscow – Russia 24 Paris – France 8 Rome – Italy 12 Vienna – Austria 16 Warsaw – Poland 12
Americas Visa Office Processing Times IN MONTHS
(based on a complete application package)
Bogota – Colombia 12 Buenos Aires – Argentina 14 Guatemala City – Guatemala – Havana – Cuba 10 Kingston – Jamaica 23 Lima – Peru 10 Los Angeles – United States 29 Mexico City – Mexico 17 New York – United States 35 Ottawa (Case Processing Centre) – Canada 16 Port-au-Prince – Haiti 23 Port of Spain – Trinidad and Tobago 17 Santiago – Chile 22 Santo Domingo – Dominican Republic 14 Sao Paulo – Brazil 5
- You can view your application status online.
- If it has been longer than the time shown above since you applied and your visa office has not contacted you, you may wish to contact the visa office that is processing your application. The Call Centre does not have information about applications processed outside Canada.
- (–) indicates that not enough data are available. Processing times are shown only where an office has finalized 10 or more cases in the past 12 months.
4. Should I choose the Inside Canada or Outside Canada process?
As alluded to earlier, Applicants currently residing in Canada have a choice of applying for an Inside Canada spousal sponsorship (http://www.cic.gc.ca/english/information/applications/spouse.asp) or, if they have temporary resident status and reside in Canada, an Outside Canada spousal sponsorship (http://www.cic.gc.ca/english/information/applications/fc.asp). Applicants applying from outside Canada can only utilize the Outside of Canada process.
Note with an Outside Canada application you will also need to show that there will be an effort to bring the spouse to Canada to reside permanently upon being granted permanent resident status.
An Inside Canada spousal sponsorship application certainly has its advantages, among which include:
- If the Applicant has valid temporary resident status after 4 month processing, there is currently a pilot project for a spousal open work permit which will allow the Applicant to work in Canada for any employer in Canada;
- The Applicant can still have their application processed without holding temporary resident status and has the benefit of an administrative deferral of 60 days in most circumstances (in which time the application will be processed) if removal proceedings are issued against the Applicant;
- For those who currently have temporary status and apply to extend their temporary status in Canada along with their in-Canada spousal permanent residence application, they can have implied status for the duration of the processing or until they leave Canada;
- The entire process occurs in Canada, there is no need to travel abroad for an interview at a foreign visa post;
However, there are also several disadvantages:
- The spouse/common-law partner needs to reside and live together in Canada for the duration of processing. Any separation (particularly outside of Canada travel by one party) may effect severance of the common-law relationship;
- Any denial of re-entry for the Applicant to return into Canada will lead to refusal of the in-Canada application and will trigger the requirement to reapply (likely using the Outside Canada process);
- You have no rights to appeal to the Immigration Appeal Division in the case of your application being refused. Your only recourse is the Federal Court where the visa officer’s decision is reviewed on the difficult to challenge standards of reasonableness and correctness;
- There is currently a 26 month processing time for these applications in which time the Applicant will not be a permanent resident of Canada; and
- The open spousal work permit is a pilot project and subject to change. Previous to the new pilot program, spousal work permits were only issued after 17 months of processing, meaning many couples had to rely solely on the Sponsor’s income for 17 months;
An Outside Canada spousal sponsorship application also has its advantages:
- The Applicant and Sponsor do not need to reside together in Canada and can pursue options either abroad or in Canada;
- There is a general right to the Immigration Appeal Division in the event your Spousal Sponsorship application is refused (except in serious criminality, misrepresentation, terrorism, etc.). At the IAD you will have a second chance in a de novo (new) hearing to prove the genuineness and purpose of your marriage (should that be the ground for refusal).
However, there are also several disadvantages:
- There is no right to an open spousal work permit and you will likely have to obtain the ability to work in Canada through under means;
- Couples may have some challenges spending immediate time together in Canada where the Applicant is from […]
My Value Proposition
My Canadian immigration/refugee legal practice is based on trust, honesty, hard-work, and communication. I don’t work for you. I work with you.
You know your story best, I help frame it and deal with the deeper workings of the system that you may not understand. I hope to educate you as we work together and empower you.
I aim for that moment in every matter, big or small, when a client tells me that I have become like family to them. This is why I do what I do.
I am a social justice advocate and a BIPOC. I stand with brothers and sisters in the LGBTQ2+ and Indigenous communities. I don’t discriminate based on the income-level of my clients – and open my doors to all. I understand the positions of relative privilege I come from and wish to never impose them on you. At the same time, I also come from vulnerability and can relate to your vulnerable experiences.
I am a fierce proponent of diversity and equality. I want to challenge the racist/prejudiced institutions that still underlie our Canadian democracy and still simmer in deep-ceded mistrusts between cultural communities. I want to shatter those barriers for the next generation – our kids.
I come from humble roots, the product of immigrant parents with an immigrant spouse. I know that my birth in this country does not entitle me to anything here. I am a settler on First Nations land. Reconciliation is not something we can stick on our chests but something we need to open our hearts to. It involves acknowledging wrongdoing for the past but an optimistic hope for the future.
I love my job! I get to help people for a living through some of their most difficult and life-altering times. I am grateful for my work and for my every client.