Friday, 4 December 2009

Breakaway Anglicans Can't Keep their Churches

An interesting case from Canada which might have some relevance to any Church of England parishes which are considering leaving the CofE either to join the Catholic Church following the invitation from Pope Benedict or to join any of the myriad breakaway groups currently fracturing world wide Anglicanism

In Bentley v. Anglican Synod of the Diocese of New Westminster, 2009 BCSC 1608 (CanLII) a group of parishioners in British Columbia were seeking independence from the mainstream Anglican Church of Canada (ACoC) over what they saw as its anti-Christian trends. Mr. Justice Stephen Kelleher of the British Columbia Supreme Court issued a mixed decision saying that four parishes in the Vancouver area may not keep their buildings if they remove themselves from the jurisdiction of the ACoC. Nevertheless, the court ruled, the bishop of New Westminster also does not have the right under civil or canon law to fire the trustees of the parishes. The two sides, he said, are going to have to work out their difficulties outside the courts.

The move by the parishes to secede from the ACoC came in response to a decision in 2002 by the Anglican bishop of New Westminster Michael Ingham to force all parishes to begin same-sex "blessing" ceremonies, a move that was contrary to international agreements made by the ACoC at the time. Ingham's decision was blasted by then-Archbishop of Canterbury, George Carey, who called it, a "departure from the main thrust of Anglican moral tradition."

The four parishes in question had voted in 2008 to disassociate with the Anglican Church of Canada (ACoC) and join the Anglican Network in Canada (ANiC), a recently recognized separate diocese in the Worldwide Anglican Communion affiliated with the Anglican Province of the Southern Cone. They then went to Court asking for clarification of the trustees' responsibilities in light of what they called the hostile action taken by the ACoC Bishop who threatened to fire and replace the trustees and take control of two of the churches' properties and bank accounts.

The bishop has apparently issued a statement in response to the court ruling saying that he will be removing the clergy of the four parishes and replacing them with others who will cooperate with him however those new Clergy will have to co-operate with the existing Parish Trustees who want to leave the ACoC which is hardly a recipe for a happy working parish life.

Like most Canadian Court Judgments this one is extraordinarily long (I don't know why Canadian Judges feel they have to go on as long as they invariably do, maybe it comes from having two official languages) but paras 53 - 155 provide an interesting historical review of the build up to the present problems in world wide Anglicanism.

Mr Justice Kelleher ruled that the Bishop did not have legal or canonical authority to terminate and replace the Parish trustees, but said that the trustees must exercise their authority in relation to the parish properties in accordance with the constitution, canons, rules and regulations of the diocese, "the parish properties are held on trust for Anglican ministry as defined by the [Anglican Church of Canada]."

The judgement is not, of course, binding in England but it is likely that it demonstrates the approach that English courts would follow if they were faced with a situation where a CofE parish wanted to leave the mainstream CofE but take its Church with it.

Dissident Anglicans might well claim that they are in fact the "true" Anglicans rather than, what they would see as, the present temporising and morally compromising leadership of the CofE however that is a Theological rather than a legal proposition and it is a line of argument Courts are simply not going to go down.

For the "ordinary" Civil Lawyer like me what was also interesting was that the Judge attached importance to Anglican Canon Law, that has often been considered a somewhat esoteric subject but it looks as if courts will regard it as a starting point in determining any legal disputes if any Cof E parishes try to copy their Canadian conterparts

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