Coogan Act Still Protecting Minors

Not many producers are aware that by virtue of the Infants Act of British Columbia, minors (i.e., persons under 19 years of age) cannot legally enter into and be bound by contracts; they simply do not have the legal capacity to do so. As an example, if a minor were to enter into an acting agreement, perform his or her services and then subsequently decide that he or she did not want the producer to use the footage shot, there is little the producer could do to bind the child to the contract. As a result, some producers retain production counsel to apply to the British Columbia Supreme Court under the Infants Act for an order granting the child the capacity to enter into and be bound by the relevant acting agreement. Such applications (known colloquially as "Jackie Coogan" applications after the famous American child actor of the 1930's) are brought by way of Petition and must be heard by a judge. Before a child may be employed as an actor, the producer must obtain a Work Permit under the Employment Standards Act. If the child actor has cumulative lifetime earnings of over $5,000.00 (time commences to run from October 1, 1997), then the producer must deduct and withhold 25% of the actor's gross remuneration and remit it to the Public Trustee's Office. It is important, therefore, that a producer ensure that its payroll company verify whether or not this holdback will apply to child actors in the production. Recent amendments to the Employment Standards for Children in the Film Industry provide that the holdback may also be paid to either a (i) trust for the benefit of the child; or (ii) an account for the benefit of the child as may be approved by a court of competent jurisdiction. The rationale behind the holdback requirement may largely be attributed to examples of less than scrupulous parents or guardians who squandered their children's earnings from the film industry (for example, Gary Coleman, formerly of Diff'rent Strokes, apparently lost the benefit of several million dollars).

Production counsel will forward a copy of the application materials to the Public Trustee's Office for review. If the Public Trustee's Office finds that the requirements under the Employment Standards Act and the Infants Act have been met and that the contract is in the child's best interests, the Office will provide a letter advising the court that the child contract be ratified.

Armed with the letter from the Public Trustee's Office and the application materials, production counsel will then appear in court to speak to the application. The judge will review the application materials and, in particular the acting contract. The judge will take into account the following factors in determining whether the contract is in the child's best interests: (a) whether the child would obtain the monies held in trust once he or she reached the age of majority; (b) the remuneration to be paid to the child; (c) whether the sanctions in the contract, if the child failed to live up to its terms, were so serious that the child requires the protection offered by law to minors in matters relating to contracts and; (d) whether the parents had sought independent legal advice with regard to the contract. Assuming the judge is satisfied that the contract is in the best interests of the child, the judge will then issue an order granting the child the capacity to enter into and be bound by the acting contract.

Given the exigencies of production, it is not unusual for such orders to be granted well after the child has provided his or her acting services. If the child actor is from another country, the judge may also order that the holdback be paid into the child's trust account in the country of origin. As an example, under the California Family Code, the holdback requirement is only 15%. The Public Trustee's Office and the Employment Standards Branch will agree that 15% as opposed to 25% be withheld for child actors from California upon receiving documentary evidence from production counsel that a trust account has been set up in California and that the trustee of such account (usually one of the child's parents) does not have the ability to withdraw monies from it. Producers are well advised to consider bringing Jackie Coogan applications not only to protect themselves in the event a child and/or parent decides to renege on an acting agreement, but also as a public relations exercise to show that the producer is concerned with child welfare on set and takes pains to ensure that all relevant child protection statutes are adhered to. Given the volume of legal issues that a producer must deal with in the course of getting its production to the screen and given the ever increasing salaries of child actors, producers can minimize at least one potential risk to a successful production by having production counsel bring Jackie Coogan applications for all of the production's child actors.