By Jim Coggins

A LONG-AWAITED provincial court decision has disappointed traditional Anglicans.

On November 25, Justice Stephen Kelleher of the British Columbia Supreme Court ruled that the Anglican Diocese of New Westminster will retain the property of four parishes which have left the diocese to join the Anglican Network in Canada (ANiC). While the decision has brought some clarity, however, it has not resolved all issues in the dispute.

A strong majority in the four parishes voted to leave the diocese in 2008. As stated in an ANiC news release, they had been in "serious theological dispute" with the diocese since 2002, when it voted to offer blessings to same-sex unions. The parishes have argued that the real issue is their commitment to remain true to the teachings of the Bible. They are among many traditional parishes uncomfortable with liberal theological and social trends in the Anglican church.

The Decision

In his 98-page written decision, Justice Kelleher said he based it on "neutral principles of law" (paragraph 248) -- the idea that courts should not get involved in church doctrinal disputes, but decide church property issues based on a church's own "statutes and rules."

In this case, while the parishes were separately incorporated and held title to the properties, the parishes were incorporated under the same Act which incorporated the Diocese; therefore, Kelleher ruled that "A parish does not have authority to unilaterally leave the Diocese" and "property effectively remains within the Diocese" (paragraph 256).

The four parishes had argued that the case should instead have been decided on trust law -- the idea that the properties were donated and held in trust for "historic, orthodox Anglican doctrine and practice" (paragraph 258) as defined in the 'Solemn Declaration' issued by the Anglican Church of Canada (ACC) when it was founded.

Kelleher did not decide the case based on trust law -- but stated that if he had, the properties would still remain with the diocese. This conclusion was based on several considerations:
• while the ACC issued the Solemn Declaration, the church was not founded on it;
• it is impossible to determine what is historic orthodox Anglican doctrine, since Anglican doctrine has already changed on issues such as allowing the remarriage of divorced persons and the ordination of women;
• the courts should defer to the "highest ecclesial authority" to decide what is orthodox doctrine -- in this case, the General Synod of the ACC.

"It is a great concern to hear that a majority can redefine and change the doctrine of the church and that those who wish to remain faithful to the church's teaching must change their beliefs or sacrifice their buildings," said Cheryl Chang, chancellor (in-house legal advisor) to the ANiC. She suggested that the court decision is based on a misunderstanding of Christian doctrine. "The Bible is not changeable by democratic vote."

Don Hutchinson, vice president for the Centre for Faith and Public Life, and general legal counsel for the Evangelical Fellowship of Canada (EFC), stated: "I commend those who have taken the position of placing their faith and practice ahead of bricks and mortar." However, he found it appropriate that Justice Kelleher "respected the religious freedom of the Anglican communion" by allowing internal Anglican processes to resolve internal Anglican disputes. "We don't want the courts or government making final decisions on the beliefs, practice and polity of a church."

Clarification still needed

George Cadman, chancellor of the Diocese of New Westminster, praised the court decision, saying it has "provided clarity going forward."

However, not all issues have been clarified. For one thing, the parishes have 30 days in which to decide whether to appeal the ruling to a higher court. An appeal could delay a final decision for years.

One of the issues which might affect an appeal is the ongoing re-structuring of the worldwide Anglican communion. New Westminster is a diocese in the ACC, which is one of 38 'provinces' of the worldwide Anglican communion. Kelleher based his decision, in part, on the fact that the ACC is the only Anglican province in Canada recognized by the Archbishop of Canterbury, nominal head of the Anglican communion.

However, the ANiC has organized itself as a diocese and joined the Anglican Church of North America (ACNA), which hopes to become a province in the Anglican communion. While the ANiC has about 3,500 members, the ACNA has 100,000 in 28 dioceses in Canada and the U.S. The possibility that the ACNA would be accepted as a province in the Anglican communion was called "highly remote" by Cadman; and the head of the diocese, Bishop Michael Ingham, termed the idea "pure fantasy."

However, the ACNA has already been recognized by a number of provinces in the global south, which may represent a majority of Anglican members worldwide.

The court decision was not entirely favourable to the Diocese of New Westminster. Again applying the Anglican church's own rules, Kelleher concluded that Ingham had no right to replace the trustees (people elected by each parish to administer its property). It was Ingham's attempt to do this that prompted the four parishes to initiate the court case.

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The court decision means that the diocese owns the buildings; but they are still being administered by the parish trustees. Kelleher decided to "leave it to the parties to arrive at a workable resolution" to this problem.

Hutchinson suggested that the court was essentially challenging both parties to cooperate and find a mutually acceptable solution. He noted the "clear scriptural injunction about reconciling with your brother," and said there are Christian mediation resources which could resolve the issues with less expense and less division than the court system.

However, leaders of the Diocese of New Westminster suggested that the issue has already been decided. Ingham contended that "the entire conflict has been unnecessary," blaming it on a few "extreme conservative leaders." He has written to the parishes, inviting them to remain in the buildings and work with him to appoint new conservative clergy acceptable to both him and the parishes.

That is not likely to happen, said Chang. The people in the parishes who voted by strong margins to leave the diocese "knew we could lose our property . . . At the end of the day, if forced to choose, we will choose our faith over our buildings."

Bricks and mortar

At stake is not just the church buildings, but also the parish bank accounts and other property -- down to the hymn books in the pews. However, since the dispute began -- and after an attempt by the diocese to take control of the bank accounts -- some of the parishes have been operating out of separate bank accounts, held in the name of the ANiC.

The least affected of the four parishes is Church of the Good Shepherd in Vancouver, the largest Chinese Anglican parish in Canada. Since it had outgrown its Anglican building anyway, the congregation recently purchased a larger building from Metropolitan Tabernacle. The diocese has no claim on that building. Further, in the court case, Justice Kelleher ruled that a $2.2 million bequest to the Good Shepherd congregation's building fund belonged to the congregation, and not the diocese.

St. Matthew's Church in Abbotsford, B.C., has been offered space in the building of a church belonging to another denomination if it chooses to surrender its building.

The situation may be more difficult for the other two churches in expensive west Vancouver: St. John's Shaughnessy; and St Matthias / St. Luke's. Chang is a member of St John's, the largest Anglican Church in Canada. It has a building worth $10 million; it attracts 800 people to Sunday morning worship, and many more than that to various events during the week.

Chang suggested it will be virtually impossible to find another building in the same neighborhood which could accommodate that many people. Accordingly, she maintained: "This is an attack on our ability to preach the gospel."

This court case will set a precedent for pending cases involving other parishes that have left the ACC. There are 33 parishes in the ANiC, and others in various ACNA dioceses. Beyond that, Chang said there are other conservative parishes in the ACC which may want to leave in future. ACC leaders, she asserted, are "forcing people to stay in the church out of fear" they will lose their buildings.

"Nobody needs to stay in a denominational structure because they can't afford to leave," Hutchinson suggested. He added: "I don't know what the Anglican Church of Canada plans to do with empty buildings."

A recent study by the Diocese of New Westminster, and another by the ACC, show very significant declines in attendance and finances. Aside from the conservative parishes which are leaving, the denomination is already facing a surplus of buildings.

However, both Cadmon and Ingham refused to speculate on whether their diocese would be willing to sell buildings to ANiC congregations. The issue is of some concern, because leaders of the ACC's American counterpart, the Episcopal Church, have stated they would not sell buildings to conservative parishes that have left the national body.

Links

Churches don't belong to Anglican dissidents, says B.C. court ruling
Canadian Press

Anglican diocese retains ownership of four disputed church properties
Douglas Todd, Vancouver Sun, November 25, 2009

Breakaway Anglicans can't take churches
Charles Lewis, National Post, November 27, 2009

BC court rules for diocese in New Westminster parish property case
Anglican Church of Canada, November 26, 2009

Court rules church properties remain with diocese of New Westminster
Anglican Journal, November 26, 2009

BC Supreme Court issues mixed decision in church property dispute
Anglican Network in Canada news release, 25 November 2009

Trial Results are In: A Statement from the Chancellor of the Anglican Diocese of New Westminster
November 25, 2009

Bishop Michael Ingham's Letter
November 29, 2009

December 3/2009