In the Parish We Trust: Ownership of Real Property of a Church Congregation

The Ontario Court of Appeal released a decision earlier this month in Delicata v. Incorporated Synod of the Diocese of Huron, resolving a dispute between the congregation of an Anglican church in Windsor and the larger Anglican Church of Canada. The conflict originated in the Anglican Church of Canada’s blessing of same-sex marriages. The congregation of St. Aidan’s voted to leave the Synod of the Diocese of Huron after the Bishop of the Synod accepted a resolution to “grant permission to clergy, whose conscience permits, to bless the duly solemnized and registered civil marriages between same-sex couples.”

Although the dispute had theological origins, it played itself out in the judicial system over ownership of the real property around St. Aidan’s.

A.H. Oosterhoff provides a background in the Ottawa Law Review on the legislative scheme surrounding church properties in Canada,

Although there were several private statutes respecting the Church of England, it appears that land was often conveyed to trustees for the use of this Church. Accordingly. a number of statutes were passed in the late 1800’s extending the provisions of the Property of Religious Institutions Act to this Church, provisions being made according to the episcopal nature of its church government and for special situations. These provisions remained in the Act until 1979. when a special statute was enacted for the Anglican Church.

The Diocese of Huron was incorporated in 1875 through an Act, which also provided the Synod to make rules and by-laws. Canon 14, “Title to Real Property and Acquisition, Maintenance and Repair of Church Buildings,” states,

1. Legal title to all real property held by any Parish or congregation in the Diocese is registered in the name of The Incorporated Synod of the Diocese of Huron, which holds it in trust for the benefit of the Parish or congregation.

2. Before any church is consecrated, the legal title thereto shall be registered in the name of The Incorporated Synod of the Diocese of Huron, which holds it in trust for the benefit of the Parish or congregation.

3. The sale, leasing, mortgaging or other disposition of any church, parish hall, rectory or other real property owned by the Parish or congregation, however the title is registered, shall require the prior consent of the Vestry, the Diocesan Council and the Bishop of the Diocese.
[emphasis added]

The trial judge ruled that members of a Parish can change over time and therefore the Parish could not simply choose to sever itself from the Diocese based on the whims of the congregation at any particular time. 

The court had the benefit of similar litigation in B.C. over remarkably similar disputes in the Anglican church in that province. In Bentley v. Anglican Synod of the Diocese of New Westminster, the B.C. Court of Appeal ruled in favour of the Anglican Church of Canada, and the trial judge in Delicata referred to the following paragraph in Bentley in his decision over the charitable purpose trust advanced by the congregation:

[76] I prefer to rest my conclusion that the appeal must be dismissed, however, on the basis that the purpose of the trusts on which the parish corporations hold the church buildings and other assets is to further Anglican ministry in accordance with Anglican doctrine, and that in Canada, the General Synod has the final word on doctrinal matters. This is not to say that the plaintiffs are not in communion with the wider Anglican Church – that is a question on which I would not presume to opine. I do say, however, that members of the Anglican Church in Canada belong to an organization that has subscribed to “government by bishops.” The plaintiffs cannot in my respectful opinion 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.
[emphasis in the original]

The costs judge in Delicata adopted the minority view from the litigation in Bentley and made a no-costs to promote harmony and because the litigants were moved by their conscience. The congregation of St. Aidan’s appealed the trial judge’s decision, and the Synod cross-appealed the decision over costs.

The congregation argued the trial judge failed to give the words “parish” and “congregation” the plain meaning to refer to the worshipers at St. Aidan’s, and the settler’s intention that the trust property was intended for the congregation adhering to traditional Anglican beliefs. Pepall J.A. rejected this argument and upheld the trial decision on the following basis:

1. The appellant’s interpretation would be inconsistent with Canon 14, which requires the Bishop’s prior consent before selling, mortgaging or disposing of church property.
2. The appellant’s interpretation would be inconsistent with Section 2(1) of the Anglican Church of Canada Act, which also requires consent of the Bishop and the Synod before selling church property
3. Canon 18 defines members who are eligible to vote on church matters as those who have attended worship for 3 months. This very basic requirement would lead to absurd results if congregations were defined by specific snapshots of church attendees.

The Court of Appeal did reverse the decision on costs in finding that the justice system should not provide a safe harbour for spiritual or religious convictions, and there was no evidentiary basis for the need to preserve harmony within the church.