FAQ - Are there Residency Requirements for the Directors of a Canadian Charity?

October 25, 2008 | By: .(JavaScript must be enabled to view this email address) Mark Blumberg
Topics: Canadian Charity Law

This FAQ looks at whether there are residency requirements for Canadian charities.

FAQ - Are there Residency Requirements for the Directors of a Canadian Charity?

To answer this question we first look to Registered Charity Newsletter No. 20 from the Charities Directorate of CRA to answer this question.  Newsletter No. 20 advises:


“Board of directors

Q. Does the requirement that a charity be resident in Canada require that a majority of its board of directors be Canadian residents for income tax purposes?

A. Section 248(1) of the Income Tax Act requires that a registered charity reside in Canada, and that it be created or established in Canada. However, how the rules concerning residency apply differs according to the way the charity has been structured. For example, whether it is incorporated or governed by a legal document that creates a trust or by a constitution, and whether it is “a branch, section, parish, congregation or other division of an organization”.  The residency requirement for charities and some other rules, notably those dealing with charities having to keep books and records in Canada or with restricting fund transfers to qualified donees only, suggest that registered charities ought to have a significant Canadian presence. However, in the case of corporations, the general provisions of the Income Tax Act concerning corporate residency (ss 250(4)) deem any corporation (charitable or not) to be residing in Canada simply if it was incorporated in Canada.  If there is no incorporation, the requirements can be different. For example, in general, a trust is resident in the country where the majority of its trustees are resident.  However, an unincorporated association is a “person” for the purposes of the Income Tax Act, and would likely be resident where its central management and control resides.”

In addition to Newsletter No. 20 the Canada Corporations Act, which governs federal non-share capital corporations, and the Ontario Corporations Act which governs Ontario non-share capital corporations do not have a Canadian residency requirement for directors.  Generally, trusts or unincorporated associations are not used in conducting international philanthropic activities.

That being said although there is no legal requirement that Canadian charities have resident Canadian directors it will be more difficult to show when applying for charitable status or after the charity has received charitable status that the Canadian charity is maintaining direction and control over their activities.

GlobalPhilanthropy.ca was created by Mark Blumberg, a lawyer at Blumberg Segal LLP in Toronto, Ontario, Canada.  If you require legal services with respect to non-profit (tax exempt) organizations or charities in Canada he can be contacted at or at 416-361-1982 x. 237. To find out more about legal services that Blumbergs provides to Canadian charities and non-profits please visit the Blumbergs’ Non-Profit and Charities page at http://www.blumbergs.ca/non_profit.php or http://www.globalphilanthropy.ca

 

 

 

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