Church Law

"Canada is founded upon principles that recognize the supremacy of God and the rule of law."

The Canadian Constitution, 1982

This article reviews the law of churches which, from a legal perspective, addresses not only structure but also disputes and their resolution.

Though existing for the spiritual nourishment of their adherents, churches nonetheless need legal structure to exist and operate within society.

A church can be roughly defined as a charitable association of persons organized for the advancement of religion and for the conduct of religious worship, services or rites, and that is permanently established.

The focus of this article is the structure of Canada's Protestant church, United Church of Canada (UCC).

The United Church of Canada came about as a result of the amalgamation of Presbyterian and Methodist churches. Culminating in 1925, the amalgamation or covenant, as it was then called, was made official by legislation in the Parliament of Canada and the legislatures of various provinces.

The UCC is a significant player in Canada's religious community, boasting 500,000 members in 2009 (but down from 3-million in 1991 census) in 3,300 congregations and an army of some 3,700 ordained ministers. This group receives some $400-million annually in givings, or about $120,000 per congregation.

church choirThe first source of law in regards to churches is always their enabling statute, if any. The legal status of the UCC as a body corporate is much akin to a voluntary association as established by the federal United Church of Canada Act of 1924.

If there is no enabling statute specific to a church, there may be a statute with regards to the organization and law of churches, generally. For example, many provinces have statutes which set out provisions for the use and ownership of real property. Ontario has a Religious Organizations' Land Act; Alberta, a Religious Societies' Land Act and British Columbia, a Trustee ( Church Property) Act.

Each church has a body of internal law. For Roman Catholics, the internal law is set out in the various codes of canon law; in form, modelled after Justinian's code of Roman law. Roman Catholics also defer to pronouncements by the Pope.

Anglicans, in Canada, have a code called Canons of the General Synod.

The UCC is based in Toronto and publishes a document called The Manual, which purports to set up the law, regulations, practices and procedures of the Church throughout the above described structure.

The Manual is the United Church's bible of law but not unlike counterparts of other religions, rather than present as a code of law, it is a hybrid and thus, a complex document unnecessarily written, at times, in parabolic riddle as if to an audience of Puritans.

An extract (§2.5):

"We believe that our first parents, being tempted, chose evil, and so fell away from God and came under the power of sin, the penalty of which is eternal death; and that, by reason of this disobedience, all men are born with a sinful nature...."

But these internal legal codes are as good as law as between the members.

In Lakeside Colony of Hutterian Brethren, Canada's Supreme Court deferred to the internal regulations of the religious institution in assessing whether a member had been properly expelled.

In Pedersen, Ontario judge Cavarzan had before him a Roman Catholic priest who was before him seeking to have overturned a suspension imposed upon him. Rather than seek redress through the various avenues afforded him within Roman Catholic rules, the priest sued his bishop Thomas Fulton in civil court. In staying the priest's application, the court wrote:

"... there is an obligation on the plaintiff, in the circumstances, to exhaust his remedies under the Revised Code of Canon Law."

There is an isolated case, Davies v United Church, which provides an example of judicial activism even though internal church avenues of redress had not been exhausted. However, the clear slant of the jurisprudence is that the courts will defer if they can.

In Religious Institution and the Law in Canada, Ogilvie writes:

"The courts have expressed reluctance to consider issues relating to religious institutions evidencing some embarrassment that internal church disputes should be determined by secular courts and doubting the appropriateness of judicial intervention. The courts as stated that they will not consider matters which are strictly spiritual or narrowly doctrinal in nature, but will intervene where civil rights or property rights have been invaded...."

The United Church of Canada is a level-based church, with each level being independent but with the decisions of lower levels sometimes being appealable to the higher levels. It almost seems inspired by Matthew 18:

"If your brother sins against you, go and show him his fault, just between the two of you. If he listens to you, you have won your brother over. But if he will not listen, take one or two others along, so that every matter may be established by the testimony of two or three witnesses. If he refuses to listen to them, tell it to the church; and if he refuses to listen even to the church, treat him as you would a pagan or a tax collector."

Head Office

Church documents refer to the head office of the UCC as the General Council. It is the highest-level body of the United Church of Canada, with a CEO who is called a Moderator (the national body for the Anglican religion is called a General Synod, with a senior bishop called the  Primate).

Incorporation of the United Church of CanadaThe head office is responsible for national regulation of the ministers of the faith. But the head office also provides support to the local congregations in dealing with core issues such as church administration standards and charity-status management with the Canada Revenue Agency.

General Council serves as a national parliament for the United Church.

Few members of the church can forget the gut-wrenching agony when, in 1988, the Church proposed and then accepted that homosexuals are eligible to be considered for ordered ministry. Then, in 1992, the General Council directed that resources for same-sex unions be made available to congregations wishing to bless such unions.

Wisdom is not always available at the local level so national leadership can literally be a blessing if not a miracle:

"Human sexual orientations, whether heterosexual or homosexual, are a gift from God and part of the marvelous diversity of creation."

But Council is apt to act impetuously as well and can be a source embarrassment to the local congregations. For example, in 2009, the Canadian General Council actually entertained a resolution referring to Israel's "apartheid" and calling for a boycott of all things Israeli! This, with no consultation with the congregations.

The General Council exercises both executive and judicial functions, running the ship of God and operating as a court of last internal resort for resolving disputes.

Conference

There are regional offices such as the British Columbia Conference, based in Vancouver. The 13 regional Conferences represent all presbyteries within its territory.

Similarly, Roman Catholics and Anglicans maintain regionally-based dioceses, each headed by a bishop.

Presbytery

Then there are 90 UCC regional offices called presbyteries, such as the Victoria Presbytery, based in Victoria, and with jurisdiction over a specific geographical area. The Victoria Presbytery has oversight responsibility for United Church congregations and agencies on Vancouver Island.

Presbyteries have authority over local United Church ministers with an ability to manage their careers and institute employment reviews as necessary but the UCC in Toronto maintains the formal registry of ministry and it alone controls the certification of applicant ministers.

Most regulations in regards to ministers are modelled after regular employment law. But then, there can be anomalies. For example, since 1992, the United Church has a Sexual Abuse, Sexual Harassment, Sexual Exploitation, Pastoral Sexual Misconduct, Sexual Assault and Child Abuse policy which sets out that in the event of a related criminal conviction, the minister is disciplined or simply expels from the Order.

Interestingly, when it has been sued for vicarious liability related to the alleged sexual misconduct of one of its ministers, the United Church of Canada has alleged that it would have preferred dealing with the allegations in-house, by reference to be sexual abuse policy. This shows considerable naivete towards the sequelae of sexual abuse. For a sexual abuse victim, an in-house process means trial by a delinquent minister's peers, anxious as they are, by nature, to foster forgiveness. Forgiveness, of course, is not a concept known to the common law. In any event, how does one forgive sexual abuse?

Congregations

On Vancouver Island, there are individual churches such as Fairfield United Church in Victoria. To describe these community-based churches, the United Church uses three words interchangeably: circuits, congregations or pastoral charge. It recognizes the official church board as the decision-making body and mouthpiece of a particular congregation.

Much like a company, a congregation meets from time to time to elect members of its board. This executive committee is sometimes called a council, sometimes called a church board or official board.

The church board, assisted by committees or satellite groups as required, manages the church property and personnel and outreach programs and in consultation with the minister, the delivery of the Sunday service.

The minister acts as a de facto CEO of the church.

The relationship between Presbytery and Congregation almost always runs smoothly. But legal concerns can arise when disputes erupt, especially the highly controversial area of minister incompetence or misconduct. In this context, an understanding of the legal shortcomings of the Manual is essential.

The Manual and, indeed, the union documents of the 1920s, suggest that the congregation, which the Manual calls a pastoral charge, be free from interference:

"The liberty of the Pastoral Charge shall be recognized to the fullest extent ...."

In practise, Presbytery is often quick to exercise its fire-fighter jurisdiction as set out in the Manual. When needed, Presbytery does jump in to lead a congregation through troubled waters, often erring on the side of caution.

Inevitably, upon occasion, the interference is clumsy and may even create new issues. Presbytery members rarely attend the service of other churches (they're active members or ministers otherwise engaged on Sunday mornings), and are rarely on-location when problems arise within a congregation. Thus, Presbytery, a regional overseer body has limited knowledge, and relies necessarily on hearsay, as discreet conversations skip from one to another – all anathema to a fair and just resolution of the problem before it.

In the area of minister employment issues, the fact is that many ordained ministers have experienced some congregation stress in their professional pasts and, sitting on Presbytery, can be reasonably expected to err on the side of a clerical-collared colleague. It is true that a broken relationship between a congregation and their minister may not be a result of the minister's actions or omissions but, generally, a fish rots from the head down.

Still, according to the United Church of Canada Manual, once a minister is hired, and contrary to general employment law, few quick or final decisions regarding the minister's tenure can be made by the congregation even though it is the congregation that is best positioned to appreciate a clergy's shortcomings. In the event that the Congregation seeks to call into question its Minister, it can have ten (10) members sign a petition to Presbytery. But according to The Manual, it is Presbytery that then sets the date of the Congregational meeting to discuss the Minister's ability, a discretion which Presbytery can manipulate for its own purposes such as, for example, inordinate delay to favour a minister that it feels is being bullied by the Congregation.

In contrast, when the United Church is sued for an event which can be contained to one or more congregations, one of the first assertions of fact it will present in a statement of defense is that it is a separate legal entity from its member congregations and therefore cannot be vicariously liable or legally responsible for any negligence of the particular congregation(s).

Even if corrective or investigative action is called for, Presbytery controls the timing of that action; again, a fertile field for remote decisions on which is balanced the health of a church.

Conclusions

Church law can be a minefield.

Any one of the thousands of Christians who have made profound personal investments and who run the churches of our land, can suddenly face painful issues. The United Church is not unique in this regard.

Moses was onto something: knowledge and adherence to the church's law is the best roadmap to justice, fairness, peace and order.

Disclaimer: The author, Lloyd Duhaime, was general counsel for the Victoria Presbytery in 2001 and 2002 and is presently chair of the Church Council of the Fairfield United Church in Victoria. The views presented in this article are solely those of the author.

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Published: Sunday, August 30, 2009
Last updated: Monday, November 07, 2011
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