CITATION: MADAN v. SACHDEVA 2026 ONSC 524

COURT FILE NO: FS-22-00104438-0000

DATE: 2026 01 27

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

KAPIL MADAN

Applicant

A. Kania for the Applicant and added Respondents

• and -

SALONI SACHDEVA

Respondent

-and-

SUBHAS MADAN and ASHA MADAN

S. Samra for the Respondent

HEARD: July 16, 2025

Added Respondents

REASONS FOR DECISION

MOTION FOR EXCLUSION POSSESSION

L. Shaw J.

Introduction and Overview

1Mr. Madan, the Applicant/husband, moves for an order for exclusive possession of the matrimonial home located at 5127 Heatherleigh Avenue in Mississauga and an order that the divorce be severed from the corollary relief.

2Ms. Sachdeva, the Respondent/wife, seeks an order for exclusive possession of her bedroom and washroom and a fixed schedule for the use of the kitchen and other common areas in the home. In the alternative, she seeks an order for the sale of the home. She opposes the severing of the divorce form the corollary relief.

3I heard no submissions about the sale of the home nor was it addressed in the factums filed by the parties. As Ms. Sachdeva does not have a legal ownership in the home, the basis for that relief is unclear. In any event, it will not be addressed in these reasons as the issue was not addressed either in writing or orally.

Review of the Evidence

4The parties were married in India in November 2009. Mr Madan was residing in Canada at the time and Ms. Sachdeva was residing in India. Mr. Madan sponsored Ms. Sachdeva and she moved to Canada in April 2010. She began to live with Mr. Madan in the home on Heatherleigh Ave. that Mr. Madan was living in at the time. The home was purchased in 2006. For the past 15 years, both parties have continued to live in the home with Mr. Madan’s parents who have been added as Respondents to this action.

5They have no children. According to Ms. Sachdeva she has no other family in Canada.

6The date of separation is in dispute. Mr. Madan says they separated in August 2020. According to Ms. Sachdeva, after an argument with Mr. Madan’s father in August 2020, Mr. Madan retained a lawyer who sent her a letter. She alleges that they subsequently reconciled and then separated in October 2022. At that time, Mr. Madan commenced this application. Mr Madan denies that there was any reconciliation after August 2020.

7I do not have to resolve that dispute for the purpose of this motion.

8According to Ms. Sachdeva, even after this application was commenced, she remained hopeful, and is still hopeful, that she and Mr. Madan will reconcile. According to Mr. Madan, there is no hope of reconciliation.

9According to Mr. Madan, he has asked Mr. Sachdeva, repeatedly, to leave the home, but she refuses. Ms. Sachdeva’s evidence is that until such time as they settle the outstanding disputes between them, including her claim for an interest in the home, she does not intend to vacate the property. She says she does not have the financial ability to do so.

10According to Mr. Madan, Ms. Sachdeva does not contribute financially to any of the expense in the home. According to Ms. Sachdeva, the basement in the home is rented and she and Mr. Madan would pay from their joint bank account any shortfall that the rental income did not cover. She does not currently contribute to any of the expenses in the home.

11Mr. Madan’s parents are the registered owners of a 66.6% interest in the home and Mr. Madan is the registered owner of a 33.3% interest in the home. Mr. Madan’s evidence is that while he has a legal ownership in the home, he is holding his interest in trust for his parents. Subhas and Asha Madan, who filed affidavits for this motion, agree.

12According to Mr. Madan, his parent’s purchased the house in 2006 as their retirement home. To qualify for a mortgage, he and his sister were included on title. There was an oral agreement that when he and his sister eventually moved out of the home they would be removed from title. His evidence is that in accordance with this oral agreement, when his sister moved out of the home in 2011, her name was removed from title. According to Mr. Madan, his name will be removed from title when he moves out of the home. Again, his parents agree that this is the arrangement with their son.

13Although Mr. Madan’s evidence is that Ms. Sachdeva was aware of this arrangement before they married, she disputes that he holds his interest in trust for his parents. Her evidence is that she was told that although Mr. Madan’s parents have a legal ownership in the property, Mr. Madan is the “real owner” and that she would be added to title and his parents removed. She argues that she and Mr Madan are the beneficial owners of the property; she is advancing a trust claim.

14The affidavits filed by Subhash Madan and Asha Madan corroborate Mr. Mandan’s evidence about the ownership arrangement of the home.

15For the purposes of this motion, I do not have to resolve the ownership dispute. Given the conflicting evidence, the dispute can only be resolved by way of a trial to assess the credibility and reliability of the witnesses.

16The undisputed evidence is that Mr. Madan has a 33% legal interest in the property. The property is a matrimonial home pursuant to s. 18(1) of the Family Law Act, R.S.O. 1990, c. F. 3 (FLA) as Mr. Madan had an interest in the property and at the time of separation and it was ordinarily occupied by the parties as their family residence.

17It is also not in dispute that there has been conflict amongst the parties since the date of separation. The issue is whether that degree of conflict rises to the level that an order for exclusive possession should be granted.

18In January 2023, Ms. Sachdeva reported to the police that Mr. Madan assaulted her. He was charged by the police. His evidence is that this was a false claim but because of a lack of financial means to proceed to trial, he entered a peace bond in February 2024 to resolve the charges. Mr. Madan did not live in the home for about one year before the charges were resolved. During that time, Ms. Sachdeva remained living in the home.

19Ms. Sachdeva denies this was a false accusation and says that Mr. Madan wanted her to recant the allegations, which she did not do.

20No particulars or details were provided about when the assault occurred, the nature of the assault and whether there was only one or more than one incident.

21It is not in dispute that when Mr. Madan returned to live in the home, he and his parents installed video cameras in the common areas. According to Mr. Madan, he did this as he was and is fearful that Ms. Sachdeva will make other false allegations about him. To be clear, his fear is not about her conduct but rather that Ms. Sachdeva may make false allegations about him.

22Mr. Madan alleges that Ms. Sachdeva destroyed the cameras. As a result, the police were called in June 2024 to report this. No charges were laid.

23According to Ms. Sachdeva, she took down a camera that was pointed towards her bedroom door. Ms. Sachdeva’s evidence is that there are other cameras both inside and outside the house. According to Mr. Madan, Mr. Sachdeva has covered the camera lenses so they cannot record.

24According to Ms. Sachdeva, there is no video evidence from these cameras included in Mr. Madan’s affidavit as she does not behave as he and his parents describe in their affidavits.

25Mr. Madan’s evidence is that Ms. Sachdeva has verbally abused him by taunting, yelling, threatening, and harassing him. He alleges that she has intentionally caused sleep disturbance and relies on a log of phone calls on one occasion, October 11, 2024, when Ms. Sachdeva called him 11 times between 12:51 am and 1:43 am. According to Ms. Sachdeva, Mr. Madan asked him to call her as he sometimes falls asleep while gaming. This is what she did on October 11; she called him several times as he did not answer.

26According to Ms. Sachdeva, Mr. Madan works late, and he is the one who makes loud noises when he arrives home.

27Mr. Madan also alleges that Ms. Sachdeva has sexually assaulted him by way of unwanted touching of his “private parts”. He also alleges that she has followed him to grocery stores and harassed him. Ms. Sachdeva denies any unwanted touching.

28Mr. Madan’s evidence is that Ms. Sachdeva has kicked on his bedroom door to disturb him and has taken videos of him when he smokes outdoors.

29According to Mr. Madan, Ms. Sachdeva is disrespectful towards his parents who are 77 and 72 years of age and has acted aggressively towards them by putting her phone to their faces to record them. He says she taunts them and has called his mother a name to mock her.

30Ms. Sachdeva denies this conduct. Her evidence is that she is rarely home and when she is, she stays in her bedroom.

31Mr. Madan’s evidence is that in December 2024, his mother, Asha Madan, was taken to the emergency department with high blood pressure. While the inference I am being asked to make is that Ms. Sachdeva’s conduct is impacting his mother’s health, there is no medical opinion that this medical incident was caused by Ms. Sachdeva’s conduct in the home.

32According to Asha Madan, Ms. Sachdeva screams at her and her husband, taunts them and calls her names. She cooks in the middle of the night and does not clear the kitchen. She uses their food and utensils. She has brought strangers to the home.

33According to Ms. Madan, she now takes sleeping pills due to the stress in the home. She referred to a clinical note from her family doctor in September 2024 that Ms. Madan told the doctor there was stress and tension in the home and that her daughter-in-law was giving her a hard time and taunting her. She also had several other health issues that she discussed with the doctor. In another note from October 2024, the doctor’s clinical note said that Ms. Madan was complaining of insomnia and her symptoms were getting worse over the past year. According to the note, Ms. Madan reported feeling very stressed about her son’s divorce issues and that her daughter-in-law living in the house was giving her anxiety and insomnia. In December 2024, the doctor recorded that there was a history of anxiety and stress in the home.

34To be clear, these medical notes are hearsay evidence and are not admissible for the truth of the contents. These records are admissible only as evidence that Ms. Madan spoke to her family doctor about the issues in the home as the doctor recorded.

35According to Subhas Madan he also has some health issues including degenerative disc disease and osteoarthritis. He agrees with Ms. Madan’s evidence of Ms. Sachdeva’s behaviour towards them in the home.

36According to Ms. Sachdeva, Mr Madan’s parents were making things difficult for her by turning off the internet so she could not work from home. She alleges that she lost her job because of that. She also alleges that they removed kitchen utensils and food from the refrigerator and harassed her by staring at her, laughing at her and making noises to disturb her sleep. According to Ms. Sachdeva, Subhash and Asha have been harassing her in the hope she will leave the home, but things have calmed down since she served her amended answer.

37Ms. Sachdeva denies bringing strangers to the home but said her mother visited her from India and stayed with her.

38Both parties work full-time. According to Mr. Madan’s financial statement sworn in February 2024, his income in 2023 was $43,763. According to Ms. Sachdeva’s financial statement sworn November 28, 2022, her income at that time was $82,500. In her affidavit sworn for this motion, her evidence is that she works in real estate and that her income is reduced due to a downturn in the industry and she now earns approximately $20,000. She filed no evidence in support of her claim that her income is significantly reduced.

The Applicable Legal Principles

39According to s. 19 of the FLA, both spouses have an equal right to possession of the matrimonial home. Despite that equal right to possession, according to s. 24 of the FLA, one party may be given exclusive possession of the home, or part of it. Section 24(3) sets out the following factors to consider in making such an order:

(a) the best interests of the children affected;

(b) any existing orders under Part I (Family Property) and any existing support orders;

(c) the financial position of both spouses;

(d) any written agreement between the parties;

e) the availability of other suitable and affordable accommodation;

(f) any violence committed by a spouse against the other spouse or the children.

40An order for exclusive possession is a significant order and is very prejudicial to party who is ordered to vacate the home. Such an order should not be made on a motion where there is conflicting evidence that requires findings of credibility that can only be made at trial: Menchella v Menchella, 2012 ONSC 1861 at para. 15.

Analysis

41The relevant factors to consider are the financial positions of the parties, the availability of alternative accommodation, and any violence committed by a spouse against the other. The bulk of the evidence was focused on the conduct of the parties in the home. While much of the evidence about the conduct of the parties is contested, what is not in dispute is that there has been tension in the home.

42There is no evidence of what alternative accommodation is available to Ms. Sachdeva. The only evidence is that Ms. Sachdeva has no family in Canada. I presume she will have to look at renting new accommodations if she were ordered to vacate the home.

43The parties make a relatively modest incomes although at one point Ms. Sachdeva was earning more than Mr. Madan. Based on her affidavit her income is now substantially less than it was in her November 2022 financial statement. That evidence was not tested by way of cross-examination.

44There is no evidence of the cost of a rental unit. I presume that if Ms. Sachdeva were ordered to vacate the home, she would be required to pay first and last month’s rent. In her financial statement sworn in November 2022, she had savings that totalled $13,102 on the date of that statement so this is some evidence that she would be able to afford first and last month’s rent.

45I am concerned, however, about her financial ability to pay rent at this time given her evidence that she is now earning approximately $20,0000.

46These are factors I have considered in determining if I should grant Mr. Madan exclusive possession of the home.

47I will address the issue of violence. As Mr. Madan seeks to exclude Ms. Sachdeva from the home, he has the onus of establishing that there is violence in the home that raises safety and security issues. In my view, his evidence falls short.

48Orders for exclusive possession should not be made lightly as spouses have an equal right to possession of a matrimonial home. There must be clear and cogent evidence that there are safety issues, particularly in a situation where there are no children.

49There is no evidence that Ms. Sachdeva has been physically violent towards Mr. Madan. While we now understand that violence is not limited to physical acts, I am nonetheless not persuaded that there is conduct that rises to the level that warrants excluding Ms. Sachdeva from the home.

50In my view, the most serious allegation made by Mr. Madan that goes to safety concerns is that Ms. Sachdeva sexually assaulted him by touching his “private parts”. He provided no particulars such as when and where that occurred. It is a bald allegation that Ms. Sachdeva denies.

51Sexual assault is a serious criminal offence often punishable by a period of incarceration. Had Ms. Sachdeva sexually assaulted Mr. Madan, I expect that he would have contacted the police to report the offence. A report to the police was made about a much less serious matter – when Ms. Sachdeva allegedly removed one of the cameras that Mr. Madan and his parents installed. If that conduct could generate a call to the police, it only makes sense that something far more egregious – sexual assault – would also generate a call to the police. For unexplained reasons, the police were not contacted. I have considered the failure to make a report to the police in determining that little weight is to be given to this allegation.

52I accept the evidence of all the parties that there is tension and hostility in the home. I accept that this is a stressful arrangement. In my view, that is not unexpected given the length of time that the parties have been living separate and apart under the same roof with no headway made on resolving their differences and reaching an agreement on any property or support issue.

53While the dynamics in the home are not healthy for anyone, including Mr. Madan’s parents, and the situation is no doubt unpleasant, in my view that is not a basis to order exclusive possession. Rude, insulting, demeaning and what I consider to be childish conduct (name-calling, making noise at night, arguments about the kitchen) of one party towards another is not a sufficient basis to order one party to leave the matrimonial home. A bald and untested assertion of being fearful is also insufficient to ground a basis to order exclusive possession.

54There is no evidence from the video cameras installed in the home. Mr. Madan argues that Ms. Sachdeva has taken steps to cover the cameras, that she did not remove, so that her conduct could not be recorded. Ms. Sachdeva argues there is no video evidence as there is no conduct on her part to support Mr Madan’s allegations of her behaviour.

55Quite frankly, as cell phones are ubiquitous, either party could have made video and/or audio recordings of the other to support their respective allegations. There is no such evidence.

56Mr. Madan also points to Ms. Sachdeva inviting her mother to stay at the home for several weeks as somehow relevant to his claim for exclusive possession. It is not. It is also not relevant that she has not been contributing to any expenses in the home but that is likely a key factor fueling the desire to remove Ms. Sachdeva from the home she has lived in for 15 years.

57The enumerated factors in s. 24(3) of the FLA act do not include a consideration of violence towards persons in the home other than a spouse or children. Nonetheless, using a contextual approach, or, in other words, looking at the totality of the evidence of what has transpired in the home, I have considered the allegations about Ms. Sachdeva’s conduct impacting Asha Madan’s health. If she was feeling stress or anxiety, it is not surprising that she discussed that with her doctor, as she also had other health issues. While stress and anxiety may have impacted on Ms. Madan’s sleep, that is not a basis to exclude a spouse from the home.

58I am also mindful that the evidence regarding who is doing what in the home and to whom is contested. The evidence has not been tested by way of cross-examinations. In my view, great care must be exercised when considering an order for exclusive possession in the face of contested evidence.

59Ms. Sachdeva seeks exclusive possession of her bedroom and a schedule to use the kitchen. Just as there was insufficient evidence to grant exclusive possession to Mr, Madan, there is similarly an insufficient bases to grant the relief Ms. Sachdeva is seeking. While there was a charge of assault and Mr. Madan entered a peace bond, I do not find that there is an ongoing basis for Ms. Sachdeva to be fearful. In fact, she would like to reconcile with Mr. Mandan which seems to be counter for a claim for exclusive possession of even a portion of the home.

60Mr. Madan is critical of Ms. Sachdeva arguing that her refusal to leave the home is part of her litigation strategy. In my view, it is not unreasonable for a party who is asserting in interest in a property to refuse to vacate the property until an agreement is reached regarding that claim. I do not consider Ms. Sachdeva’s refusal to leave the home until her claim for a beneficial interest has been resolved to be unreasonable, particularly as she is not on title to the property.

61Delays in resolving family law litigation are often the cause or source of unnecessary conflict. This is such a situation. It is in the interest of the parties to either negotiate a resolution or proceed to trial. It is not clear to me why there has been such a delay, if in fact the date of separation is in 2020. That delay is fueling the conflict.

62I am not prepared to sever the divorce from the corollary relief. If the divorce is granted, as Ms. Sachdeva is not on title to the property, that could impair her claim to an interest in the property as Mr. Madan and his parents would be free to deal with the property, without her knowledge or consent, such as selling it or further encumbering the property. Ms. Sachdeva would be disadvantaged if the divorce was severed at this time. While she remains a spouse, Mr. Madan cannot deal with his interest in the property without her consent.

63Neither party was successful in their respective claims for exclusive possession so there is no basis to award costs. While Ms. Sachdeva was successful in opposing the severing of the divorce from the corollary relief, she did not file a Costs Outline as is required in the Central West Practice Direction. I therefore decline to make any order for costs.

Released: January 27, 2026

CITATION: MADAN v. SACHDEVA 2026 ONSC 524