Cy-près and Religious Purpose Trusts
The core issue in a very interesting cy-près appeal decision of Bentley v. Anglican Synod of the Diocese of New Westminster was succinctly put as testing "the ability of the members of four Anglican parishes to remove themselves from a diocese of the Anglican Church of Canada (ACC) and from the oversight of their Bishop, while at the same time continuing to use the church buildings and related assets of their parishes for Anglican worship.
What sparked the move was that the General Synod of the ACC pronounced that same-sex blessings were not in conflict with the core doctrine of the ACC. As such blessings were not adopted by many ACC dioceses or the Anglican community, this created an unprecedented and deep divide.
The dissenting group applied to the Court for an order for possession and control of church properties and for a cy-près scheme. They contended that the properties were held on an implied religious purpose trust, and that as such purpose could not now be carried out a cy-près scheme was needed. The defendants argued that the dissenters were free to leave the Anglican Church, but without any rights to parish properties. The Court dismissed the main action (I will not address the second action), but declared invalid the Bishops purported removal of certain parish trustees.
On appeal, the Court noted that there was little authority to support the notion that internal disagreement on a doctrinal issue can support a cy-près claim - one could not say that it had become impracticable to carry out the purposes of the charity.
The Court of Appeal concluded that the trial judge did not err in declining to grant a cy-près order in the main action. It rested its conclusion on the basis that the purpose of the trusts is to further Anglican ministry in accordance with Anglican doctrine, and that the General Synod has the final word on such matters. The Appellants could not remove themselves from their Bishops oversight and the diocesan structure and retain the right to use properties held for purposes of Anglican ministry.
The Court indicated that this was a very difficult decision made after much anxious reflection. I can only imagine how much harder it would have been if it had been asked to wade into and adjudicate upon the doctrinal issues that divide these litigants!
Have a great day,
Natalia R. Angelini - Click here for more information on Natalia Angelini.
