Striving for a balance

An update on the legal process at Cote des Neiges Presbyterian Church

MONTREAL – Like many other congregations across the Presbyterian Church in Canada, the remits recognizing multiple definitions of marriage was more of a final straw than the sole reason for our thinking about withdrawing from the PCC. The repeated open admission that there were other essentials of the Christian faith (like the divinity, virgin birth and bodily resurrection of Jesus Christ) on which the PCC no longer insisted, we saw Remits ‘A’ and ‘B’ as symptoms of a much wider problem. There was a strong, essentially unanimous, consensus that emerged within the congregation that it might be time to withdraw from the PCC. One of the obvious questions was what would happen to our assets if we withdrew, including the historic building that has been our pied à terre since 1864.

As one of the original founding congregations of the Presbyterian Church in Canada, and since the congregation brought its building into the denomination, there was a strong feeling that we should be allowed to withdraw with our building and assets intact. We did not initially apply for the voluntary withdrawal process offered by the General Assembly because we disagree with the central assumption that congregational buildings belong to the PCC and that it has any right to determine the financial conditions under which congregations withdraw.

Joel Coppieters speaks during question period at Montreal city council

Because the legal issue at stake is a matter of property rights, we approached the Quebec Superior Court seeking a declaratory judgment that would confirm our right to withdraw from the PCC with all of the assets that are rightfully ours. The joint defendants in the case were the PCC and the National Trustee Board (NTB) that holds property on behalf of the denomination.

It should be noted that the doctrinal reasons for our departure did not come into play during the court appearance. This civil court was asked to decide property rights based on the interpretation of four documents; (i) the federal act that created the PCC in 1875 when CDN and a few hundred other congregations founded the denomination, (ii) the 1925 federal act that created the United Church of Canada, (iii) the 1939 and 1946 federal and provincial acts that incorporated the National Trustee Board (NTB) that holds property on behalf of the PCC and (iv) the Book of Forms that governs procedures and policies across the PCC.

During the court proceedings, our lawyer established our case by interviewing me and then Richard Lancing, one of our elders emeritus. My testimony established the legal and doctrinal issues, and Richard’s testimony helped to set the historical context with some personal experience of many decades with the congregation. We were cross examined. The PCC/NTB presented a single witness, Rev. Victor Kim, the principal clerk of the general assembly. On the second day the two lawyers gave their summations, and our lawyer had a final rebuttal.

Essentially, the PCC/NTB presented five objections that we had to counter.

They argued that a congregation cannot withdraw from the denomination, and especially not with its assets. We countered that when the United Church of Canada was created in 1925, more than 3,300 Presbyterian congregations left the PCC, bringing their assets with them. Even though the drafters of all the legal and church documents after that date clearly knew that it was possible for this to happen, they did not explicitly forbid it.

Secondly, they argued that the members and donors who contributed to the purchase and care of our buildings over the years intended their gifts to be both for the local congregation and the denomination as a whole, so our assets partially belong to the PCC. We countered that since the PCC is a registered charity in its own right, if anybody intended to give money directly to them they could have done that. Occasionally, we have raised money for disaster relief or other special projects of the PCC and when those funds were received, they were always forwarded directly to the PCC. So we do not currently have in our possession any money or assets that local donors intended to be given to the PCC

They argued that our property is not owned by the congregation but by its trustees who hold them in trust both for the congregation and for the denomination. We countered that the Quebec Civil Code is not based on British Common Law like the civil code of other provinces, and it does not recognize trustees and trustee ownership of property on behalf of someone else. The congregation is in fact an organized association of individuals, a structure recognized by the Quebec Civil Code, that has become the de facto owners of the property by their continued care and use of it for over 160 years.

They argued that if the congregation withdraws from the PCC, it will be deemed to have “ceased to exist” and therefore, according to the legal documents, its property defaults to the PCC. We countered that when the legal documents refer to a congregation “ceasing to exist” they refer not to a congregation withdrawing from the PCC as we are doing, but to congregations that die out, for lack of people and funds. We insisted that the congregation is alive and well and will continue on after we withdraw from the PCC.

“. . .how great an injustice it would be for this property to be taken away from the people who built it and cared for it with time, energy and resources, using it to serve the surrounding community in deep and meaningful ways for more than 160 years, just to give it away to another group that has never contributed a penny towards its purchase and care.”

And finally, fifthly, they argued that in many other cases where a congregation has tried to withdraw from its denomination, the courts have granted the property to the denomination. We countered that these cases don’t apply to us because they involved congregations in the Anglican, United, Roman Catholic and Maronite churches where the books of rules clearly stipulate that the denomination owns all the property. The Presbyterian Book of Forms affirms that local congregations own their property and assets. They manage them under the supervision of the local presbytery, but the congregations own the property.

We had opportunity to clearly express how great an injustice it would be for this property to be taken away from the people who built it and cared for it with time, energy and resources, using it to serve the surrounding community in deep and meaningful ways for more than 160 years, just to give it away to another group that has never contributed a penny towards its purchase and care.

When the proceedings ended on Tuesday, Nov. 5, 2024, the judge thanked us for the pleadings and testimonies which she had taken under advisement. She told us she had a great deal of reading and thinking to do and would render her judgment with careful consideration.

We received the judge’s ruling on Dec. 13, 2024. In summary, it addressed four issues.

First, the transferring of our property to the PCC when we depart from the denomination rests on the ownership of the property by our trustees and then the transfer of the property to the PCC’s trustees. We had argued that these clauses do not apply to us because Quebec Law does not allow for trustee ownership of property on behalf of a congregation, or of the national church. The judge disagreed with our assessment and ruled that the 1875 charter creating the PCC and 1939 Federal and provincial acts creating the national trustee board allows the PCC to operate with trustees even in a province whose laws usually do not recognize them.

We had argued that the clause in the 1939 statutes that stipulates that congregations forfeit their property to the national church’s trustee board if they “cease to exist” only applies to congregations who actually come to an end and not to congregations that leave the denomination. The judge disagreed and ruled that the cease to exist clause does in fact apply to congregations withdrawing from the PCC, including Cote des Neiges.

The judge agreed with the PCC’s argument that the congregation is more than just the total of the members and of the people who currently attend the services week by week. The long list of members and adherents, some of whom are deceased or have moved away, who attended the church in years and generations past, had chosen to affiliate with the PCC and to continue with it, abiding by its rules and regulations. The people who currently attend are just an instantaneous snapshot of the congregation at this time and cannot reverse or change the long standing choice of generations past to affiliate and stay with the PCC, with the rules that govern it. In other words, the people who currently are part of a congregation, do not have the authority to withdraw it from the denomination it has long been a part of.

In her closing, the judge concurred that there is an apparent sense of unfairness in the decision, but noted that those before us who chose to affiliate and stay with the PCC, continuing to invest time and resources in caring for the buildings and assets, understood that they were working and building something not just for themselves here locally, but for the wider work of the PCC.

Given this ruling, there were several options available to the congregation.

The most immediate question was whether to attempt an appeal of the judicial ruling.  We had just 30 days to give notice of our intention to appeal, giving us a hard deadline of Jan. 13, 2025. Our lawyer advised against an appeal. First because the appellate court typically accepts to hear about one case out of ten that it receives. So we had a 10-per-cent chance of the court accepting to deal with our appeal. Secondly, the success rate of similar cases heard by the appellate court is less than 50 per cent. Thirdly, the appeal process could have taken a further two to three years and costs substantially more than these first steps in the legal process. And finally, appeals are based on claims that there has been either a factual error – the judge has omitted certain facts entered in evidence – or errors in law – the judge has made a mistake in interpreting or applying a statute. While we disagree with the judge’s interpretation of several paragraphs of the applicable statutes, her thorough judgment clearly shows that she has taken into account all of the facts submitted in evidence, and does not show any blatant error in law. There were no obvious grounds for an appeal, and the appellate court is always extremely hesitant to question the legal interpretation of a lower court unless there is a clear error or omission. Given our lawyer’s strong reservations about attempting an appeal, the details were presented to the congregation and the decision was made not to proceed with an appeal.

In a conversation at the closing of the court appearance, Rev. Victor Kim informed us that it was the national office’s understanding that we had, by initiating legal proceedings, given notice of our intention to withdraw from the PCC by the fateful May 2024 deadline, and that they would allow us to opt for the voluntary withdrawal process, with the possibility of retaining 50 per cent of our assets. He recently confirmed in writing that this is still the PCC’s understanding.

The congregation has struck a next steps committee that is now examining several options still open to us.

“We are continuing to see the Lord blessing our ministry efforts and the congregation is thriving. We are concerned that ministry not take a backseat to the struggle to retain the building.. . .”

To begin with, the committee has taken a step back to reflect on the congregation’s understanding of its mission. In one sense, the financial struggle to retain this building in this neigbourhood suggests the base assumption that our primary mission and calling is still here in this borough. And that we intend to continue doing that ministry as we have in the past, from a historic piece of property that we own. Is that still the case?

The congregation and its leaders, including the session, continue to believe strongly that the important doctrinal shifts within the PCC would make it very difficult for us to stay. The way the promised freedom of conscience on the definition of marriage has already begun to erode is of grave concern to us. But we do not want to divide a thriving congregation that continues to be united in its desire to reach this community with the Gospel.

Around the central issue of staying, or leaving, and how we would leave, are dozens of peripheral issues. Would we sacrifice the manse to save the church building? Would it be more advantageous to cash out the building and start from scratch somewhere else? If we do leave the building, considering the fact that there is a moratorium on the island preventing the recognition of any new places of worship, what would be our chances of finding another existent church building for sale? What would be our chances of finding another building for sale in this neighbourhood if this is indeed the area where we are called to continue to minister.

“We continue to seek the Lord’s leading, striving for a balance between acting wisely and shrewdly, as the Lord says we should, and yet striking out in faith as we believe we are called to do when our faith and our convictions might require us to make a great sacrifice . . .”

While the congregation and its leaders definitely feel the ticking clock, particularly now that a limit date has been placed on the voluntary withdrawal process, its leaders want to proceed cautiously. We are continuing to see the Lord blessing our ministry efforts and the congregation is thriving. We are concerned that ministry not take a backseat to the struggle to retain the building, and the substantial fundraising efforts that would no doubt be required if we decided to buy back half of our building and assets.

Grateful for the more than 161 years that we have been able to effectively reach and serve this community from this building at this site, we continue to seek the Lord’s leading, striving for a balance between acting wisely and shrewdly, as the Lord says we should, and yet striking out in faith as we believe we are called to do when our faith and our convictions might require us to make a great sacrifice of assets that we have long cherished and that seemed so closely linked to our sense of identity.

May the Lord continue to guide and to provide, whatever comes next.