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Schism Within a Church and its Effect on Church Property

In Bentley v. Anglican Synod of the Diocese of New Westminster (decided in 2010), the British Columbia Court of Appeal held that, when four Anglican parishes decided to leave a diocese of the Anglican Church of Canada (ACC) and the oversight of the Anglican Bishop, the church buildings and other property belonged to the ACC and could not be used by the split-off parishes, even though they continued to adhere to the Anglican faith.

1. Facts

In 1998, the Anglican Church of Canada first adopted a doctrinal change which authorized, but did not require, the liturgical blessing of same-sex unions by clergy in the Diocese of New Westminster. The Bishop of the Diocese put this change into effect in 2002.

Four parishes within the Diocese did not accept the change. They began to withhold assessments normally payable to the Diocese. All four parishes entered into arrangements for episcopal oversight by a South American bishop who was opposed to same-sex blessings.

Given these arrangements, the dissenting parishioners and their clergy considered themselves to still be in communion with the wider Anglican Church. They had realigned themselves into a new Anglican Network in Canada (ANIC) to facilitate the oversight arrangements. As of April 2009, 24 other Canadian parishes had aligned themselves with ANIC.

The applicants sought a cy-près order that would have allowed the parishes to continue using the parish properties on terms to be worked out. However, the ACC argued that it was for the Bishop and the Diocesan Synod to authorized doctrinal changes. In effect, parishioners and their clergy must accept the results of doctrinal changes or, if unwilling to do so, leave the Anglican Church. However, if they leave, they have no rights in respect of parish properties to which they have contributed funds, time and devotion over the years, and indeed over generations.

2. Rulings

After a lengthy analysis, the British Columbia Court of Appeal concluded that the parishioners could not remove themselves from their bishop's oversight and the diocesan structure and retain the right to use properties that are held for purposes of Anglican ministry in Canada.

An internal disagreement on a doctrinal issue does not support a cy-près claim (which enables a court to transfer ownership of property where it is either impossible or impractical to carry out the original purposes of the charity).

Having four parishes located within the Diocese (which is a geographical unit) but not belonging to the Diocese (instead receiving episcopal oversight from a bishop located in South America) would insert the court into the internal affairs of the ACC in an unprecedented manner.

The court therefore dismissed the application for the cy-près order, leaving the church buildings and related property in the hands of the ACC.

3. Key Observations

Bentley v. Anglican Synod stands for the proposition that, if the constitutional documents of a hierarchical religious institution are in order, all property remains with the institution and is unaffected by fundamental or doctrinal changes that may be made in accordance with the internal rules of the institution. These fundamental or doctrinal changes may create a schism within the religious institution. However, if parishioners and their clergy decide to leave, they are leaving the hierarchical institution of which they were a part. These dissenting parishioners and clergy have no rights in the property of the institution at the time of their departure.

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