July 11, 2006

Don Anderson
RR6
71 Blackburn Road
Renfrew, Ontario
K7V 3Z9

Dear Don:

Re: Property of former Congregations of The Presbyterian Church in Canada

You asked for a ruling regarding the vesting of properties of former Congregations of the Presbyterian Church in Canada, which congregations entered Union in 1925.

While you asked for me to reference certain civil court decisions in my ruling, matters of civil law are beyond my role as General Secretary. Under paragraph (f) of Section 513 of The Manual, the General Secretary has the authority:

to make rulings on questions of jurisdiction or interpretation with respect to all matters of the polity, procedures, and practice of the United Church;

I issue this ruling based on my interpretation of church polity as set out in The Manual.

5.3 and 5.4 of the Basis of Union are relevant here:

5.3 Subject to the provisions of the next succeeding paragraph hereof, all property, real and personal, under the jurisdiction of the Parliament of Canada, held in trust for or to the use of a church, charge, circuit, or congregation of any of the negotiating Churches shall be held by trustees appointed by or on behalf of such church, charge, circuit, or congregation, upon trusts set forth and declared in a Model Trust Deed. This Model Trust Deed should be a schedule to the Act, and should contain, among others, a provision to the following effect: that the property is held for the church, charge, circuit, or congregation as a part of the United Church, and that no property so held shall be sold, exchanged, or in any manner encumbered, unless the Presbytery shall, at the instance of the church, charge, circuit, or congregation, have given its sanction, subject to an appeal, if desired, to the Conference.
5.4 Any property or funds owned by a church, charge, circuit, or congregation at the time of the Union solely for its own benefit, or vested in trustees for the sole benefit of such church, charge, circuit, or congregation, and not for the denomination of which the said church, charge, circuit, or congregation formed a part, shall not be affected by the legislation giving effect to the Union or by any legislation of the United Church without the consent of the church, charge, circuit, or congregation for which such property is held in trust.

5.3 of the Basis applies to all congregations of the negotiating denominations that entered the United Church at the time of church union. All property held by or on behalf of such congregations is to be held in trust for the congregation as part of the United Church pursuant to the terms of the Trusts of Model Deed. This provision was automatic for all congregations entering church union; no action was required of the congregation in order for the property of that congregation to be governed by 5.3 and the Trusts of Model Deed.

5.4 of the Basis sets out one exception to the rule established in 5.3. The exception applies to congregational property that was held solely for the benefit of the congregation, and not for the denomination of which it formed a part. The question then becomes whether the denomination of which that congregation formed part (Congregational, Methodist or Presbyterian) had any interest in the property of the congregation. If there was a denominational interest, the exception would not apply. If there was no denominational interest, the exception would apply.

If the exception applied, the congregation then had a choice. It could either continue to hold the property for the exclusive benefit of the congregation, or it could choose to hold the property on the same terms as set out in 5.3 i.e., for the congregation as part of the United Church pursuant to the Trusts of Model Deed. Under 5.4, it was presumed that the congregation would continue to hold the property for the exclusive benefit of the congregation unless the congregation consented to holding the property on the terms as set out in 5.3.

Section 266 of the by-laws elaborates on the exception and the circumstances in which it applies:

266 Exceptions.
(a) Where No Denominational Interest. Any property or funds owned by a Pastoral Charge or Congregation at the time of Church Union solely for its own benefit and not for the benefit of the denomination of which it formed a part shall not be held under the Trusts of Model Deed unless and until, at a meeting of such Pastoral Charge or Congregation regularly called for the purpose, it consents that it shall so be held. Where the Pastoral Charge or Congregation has not given such consent, the consent of the Presbytery is not required for the sale, mortgage, exchange, or lease of Real Property pertaining to a Pastoral Charge or Congregation. (In no province except Alberta and Saskatchewan is any Real Property of a former Presbyterian congregation included in this exception, as the provincial statutes incorporating the Board of Trustees of the Presbyterian Church in Canada vest a reversionary interest in such property in the denomination, should the congregation cease to exist. No Real Property of a former Methodist congregation is included in this exception, as under legislation affecting the Methodist Church the denomination had an interest in the Real Property of all Methodist congregations. The exception does apply to property of a congregation of the former Congregational Churches.)

Paragraph 266(a) is clear and unequivocal. It states that the exception does not apply to the property of former Presbyterian congregations, except for those congregations in Alberta and Saskatchewan.

As mentioned in the discussion of 5.3 above, the exception would not apply if the Presbyterian denomination had an interest in the property of the congregation. Paragraph 266(a) states that “the provincial statutes incorporating the Board of Trustees of the Presbyterian Church in Canada vest a reversionary interest in such property in the denomination, should the congregation cease to exist.” Since the Presbyterian denomination did have an interest in the property of its congregations, the exception would not apply in any province other than Alberta or Saskatchewan.

It is therefore my ruling that the property of congregations that were formerly Presbyterian (other than in Alberta and Saskatchewan) are governed by the provisions of 5.3 of the Basis, as more particularly outlined in paragraph 266(a) of the by-laws.

I wanted to note briefly the implications for those congregations whose property is governed by 5.3 of the Basis. Such property is held in trust for the congregation as part of The United Church of Canada [Section 1, Trusts of Model Deed]. Presbytery approval is required before such property may be “sold, exchanged, or in any manner encumbered” [5.3, Basis]. If the congregation ceases to exist at any time, its property shall be applied for the benefit of The United Church of Canada as the Conference may determine [Section 9, Trusts of Model Deed]. A congregation “ceases to exist” by Presbytery action, either approving a resolution passed by the congregation to disband, or making a decision to disband the congregation [Section 270, by-laws].

Recognizing the deep sensitivities in matters of property and being conscious of the possibility of significant differences with whatever is decided, the Manual provisions cited above have attempted to provide clear guidance to Presbyteries exercising their decision-making role. By doing so, those who determined our policies assumed that in exercising its authority a Presbytery seeks at all times to reflect the integrity of the Gospel by acting fairly, impartially, and in good faith. It strives to provide careful consideration of the issues at hand as well as the impacts of its decisions made in good faith.

Yours very truly,

Jim Sinclair
General Secretary, General Council

cc.
Conference Executive Secretaries
Joe Ramsay, MEPS