New Westminster diocese court case hearings end

Published June 13, 2009

Supreme Court of British Columbia hearings have concluded in a case that will decide whether the Anglican diocese of New Westminister or parishes that have split away from the Anglican Church of Canada own disputed church buildings and resources. Judge Stephen Kelleher reserved his judgment and did not say when he might announce a decision.Two lawsuits were filed against the diocese of New Westminster and its bishop, Michael Ingham, by clergy who cut ties with the Anglican Church of Canada and individuals who say they are the lawful trustees of church properties and resources for several congregations that also voted to leave the church. Other hearings have resulted in decisions about interim possession and sharing of Anglican church buildings in British Columbia as well as in Ontario, but this trial will be the first in Canada to rule on which side owns the buildings and resources. One suit was filed by Rev. David Short, Rev. Trevor Walters, and Rev. Simon Chin who lead congregations at St. John’s (Shaughnessy) in Vancouver, St. Matthew’s in Abbotsford, B.C. and St. Matthias and St. Luke in Vancouver, respectively, and 14 other individuals. The other was filed by Rev. Stephen Leung of Good Shepherd Church in Vancouver and four other people. The clergy in these cases left their ministries with the Anglican Church of Canada in 2008 over theological differences, including issues such as the blessing of same-sex unions, and they were asked to vacate their former parishes. Many of their parishioners voted to leave the church and join the more conservative Anglican Network in Canada (ANiC), which is now a part of the Anglican Church in North America (ACNA). ACNA is composed of clergy and congregations that have left the Anglican Church of Canada and The Episcopal Church. ACNA has been recognized by some conservative primates (national archbishops) and hopes to be recognized as a new, theologically-defined province in the worldwide Anglican Communion. In the meanwhile, these churches have aligned themselves with the Anglican province of the Southern Cone, which is based in South America. However, Archbishop of Canterbury Rowan Williams has stated that the only ecclesial body he recognizes in Canada is the Anglican Church of Canada. ANiC chancellor Cheryl Chang has said that the judge will have to decide whether this is a case of “division or departure.” Geoff Cowper, a lawyer for the parishes that separated from the Anglican Church of Canada, argued that this is a division or schism in the church, not merely a matter of a few congregations leaving to follow their own path. His clients continue to be Anglican, he said. “Neither party has an unqualified legal right to the benefit of the various properties dedicated to Anglican ministry and worship,” he said in his concluding remarks. He also argued that “properties are held on religious purpose trusts.”The lawyer for the diocese, George Macintosh, said the diocese doesn’t believe the Solemn Declaration of 1893, found in the Book of Common Prayer, creates a trust, as Mr. Cowper asserted. The structures of the diocese and the national church are sufficient to govern church affairs, Mr. Macintosh said. If the Solemn Declaration sets up a trust so defined, he said, “churches would be forced into rigorous conservatism…. Adapting their doctrines and practices to changing social realities would bring the risk of schism and dissolution. They would be forced to stick with old practices and old understandings.” But even if one conceded the Solemn Declaration created a trust, Mr. Macintosh said, that trust would be violated only if the diocese or the Anglican Church of Canada ignored very “fundamental doctrines and tenets” of the church. “The non-sanctity of same-sex relationships is plainly and obviously not fundamental to the Anglican Church of Canada… Anglicanism is a ‘big tent,’ encompassing a wide diversity of beliefs. The issue of whether or not same-sex relationships can be ‘of God’ and so blessed is well within that tent,” Mr. Macintosh argued. The case has also involved the bequest of Daphne Chun, a medical doctor in Hong Kong who died in 1992 and left her Hong Kong apartment and parking space to “the building fund of the Church of the Good Shepherd.” The parish sold the properties in 1998 for about $1.6 million, which has grown to over $2.2 million.Stanley Martin, a lawyer for the plaintiff, argued that Dr. Chun wanted to leave the property to the people she knew at Good Shepherd, and the court should decide the congregation-most if not all of whose members have left the diocese and the Anglican Church of Canada-should get the money. Ludmila Herbst, another lawyer for the defense, replied that when the doctor wrote her will, long before the same-sex blessing issue came up, she meant to leave it to a parish in the Anglican Church of Canada. In his final argument, Mr. Macintosh, pointed to seven American cases, including a decision from a California appeal court this week, which awarded property to a diocese rather than a local church. Mr. Cowper said American decisions should not be considered precedent-setting in Canada. In closing, Mr. Cowper argued that the proper role for the judge would be to accept that Anglicans have split and, invoking the law of trusts, allow the congregations to take the properties. The judge should not get into all the issues that divide the parties, since that would ultimately involve theological issues that courts don’t wish to wade into. “It’s vastly preferable for you to acknowledge the division,” said Cowper. Although Judge Kelleher did not say when he might release his decision, a ruling on complex cases such as this one can take months.With files from Neale Adams


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